A client recently came to our Manhattan office after his father passed away. He was holding his father’s will, a simple document that left everything to him and his sister. “This should be straightforward,” he said, assuming the will was the end of the story. He was shocked when I explained that the will was actually the beginning of a court-supervised process called probate—a process that would cost his father’s estate tens of thousands of dollars before he and his sister received a single penny.
This is a conversation I have far too often. Many people believe a will is a magic key that instantly transfers assets. In reality, it is a set of instructions for the Surrogate’s Court. The court’s job is to validate the will, appoint the executor, and oversee the administration of the estate. This oversight is not free. The costs are paid directly from the estate, reducing the inheritance intended for the next generation.
The Statutory Costs: What the Law Dictates
When an estate goes through probate in New York, certain costs are baked into the system. The first are the court filing fees, calculated on a sliding scale based on the gross value of the probated assets. An estate valued at $500,000 or more, for example, incurs a filing fee of $1,250 just to get the process started. But this is minor compared to the executor’s commission.
Many families are surprised to learn that the person named as executor—often a family member—is legally entitled to payment for their work. This isn’t a discretionary bonus; it’s a commission set by law. Under New York’s Surrogate’s Court Procedure Act (SCPA) § 2307, executor commissions are calculated as a percentage of the probate estate.
The rates are as follows:
- 5% on the first $100,000
- 4% on the next $200,000
- 3% on the next $700,000
- 2.5% on the next $4,000,000
- 2% on any amount above $5,000,000
On a $1 million estate, the statutory commission is $34,000. On a $2 million estate, it’s $59,000. While a family member serving as executor can waive this fee, many do not—and when a bank or professional is named, they never will. This is a significant expense, often completely unanticipated by the family.
The Professional Costs: Attorneys, Appraisers, and Accountants
Beyond statutory fees, an executor almost always needs to hire professionals. The most common is an estate administration attorney. The work is substantial—preparing court petitions, communicating with beneficiaries, settling creditor claims, and preparing the final accounting. Attorney fees can be structured as an hourly rate, a flat fee, or a percentage of the estate, and they are paid from the estate’s assets.
The complexity of the assets dictates what other help is needed. If the estate includes a family home in Brooklyn, a professional appraiser must be hired to determine its fair market value. If there’s a complex investment portfolio or a family business, a forensic accountant may be necessary. If the decedent’s tax returns are complicated, a CPA will be involved. Each of these professionals has a fiduciary duty to the estate, and their fees are a legitimate administrative expense—further reducing the final inheritance.
The Hidden Expense: Time and Family Harmony
The most damaging costs of probate do not appear on any ledger. The first is time. A simple probate process in New York might take nine to twelve months. If there are complications—a disgruntled heir who challenges the will, difficulty locating an asset, a creditor dispute—it can stretch into years. During that time, the assets are frozen. The family cannot sell the house or access investment accounts. They are in a state of limbo, waiting for the court’s permission to move forward.
This delay and financial pressure can create deep fissures in a family. I have seen siblings who were once close become adversaries during a prolonged probate. Disagreements over the sale price of a home or the division of personal property can escalate into a full-blown will contest. The emotional cost of that conflict is incalculable, and it often destroys the very legacy the person who wrote the will was trying to protect.
Stewardship. That is what estate planning is really about. It’s about creating a deliberate, intentional plan that makes the transfer of your life’s work as seamless and private as possible. Probate is the opposite of that—it is public, expensive, and time-consuming. While a will is better than no plan at all, it is not an effective tool for avoiding this process. The most common way to sidestep Surrogate’s Court entirely is through a properly funded revocable or irrevocable trust.
The first step in planning your estate is a full inventory of your assets and how they are titled. This review determines which assets would be subject to probate. Only then can we design a structure to protect your family from the costs—both financial and emotional—of a public court proceeding.
