A family in Brooklyn recently came to me after their father’s death. They had his will, a straightforward document leaving everything to his three children. They believed the hard part was over. Then the letters arrived. One was from the Kings County Surrogate’s Court, detailing filing fees. Another came from the nominated executor—their uncle—who, by law, was entitled to a significant commission for his work. They were stunned. The legacy their father intended was already being diminished by costs they never knew existed.
This is a story I see play out across New York. Families assume a will is a simple transfer of property. But a will doesn’t avoid probate—it directs it. And probate has a price tag. The value stated in the will is not what beneficiaries receive. It is the starting point from which all administrative costs, fees, and commissions are deducted. Understanding these costs is the first step in the responsible stewardship of a family legacy.
The Entry Fee: Surrogate’s Court Filing Costs
The probate process begins when a will is submitted to the Surrogate’s Court in the county where the decedent lived. This first step comes with a mandatory filing fee. It is the price of admission to the court system that will supervise the entire process. This isn’t a discretionary cost; it’s set by statute.
Under New York’s Surrogate’s Court Procedure Act (SCPA) §2402, these fees are calculated on a sliding scale based on the gross value of the estate. The fee starts at $45 for an estate valued under $10,000 and climbs to $1,250 for estates valued at $500,000 or more. While $1,250 might not seem monumental for a large estate, it is the very first of many deductions. This administrative cost provides no direct value to the beneficiaries but is required to move forward. It is the non-negotiable cost of access.
The Executor’s Commission: A Statutory Entitlement
One of the most significant—and often surprising—costs of probate is the executor’s commission. Many people name a family member as executor, assuming that person will handle the duties out of obligation. While some do, New York law recognizes that serving as an executor is a demanding job with significant fiduciary responsibility. The law grants executors the right to be paid for their service.
This is not an hourly wage. SCPA §2307 dictates a specific commission schedule based on a percentage of the probate estate—the assets passing through the will. The commission rates are:
- 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
For a Manhattan estate with $1 million in probate assets, the executor’s commission alone would be $34,000. For an estate of $5 million, it is $129,000. This is a statutory right an executor can claim even if the beneficiaries object. While an executor can choose to waive the fee, they are under no obligation to do so. This single expense can substantially reduce the inheritance intended for the family.
The Price of Guidance: Attorney’s Fees
While an executor can technically proceed without legal counsel, it is exceedingly rare and often imprudent. The probate process is laden with procedural requirements, tax filings, and potential creditor claims. Most executors hire an attorney to guide them. The attorney’s fees are paid from the estate’s assets.
Unlike the executor’s commission, attorney’s fees are not set by statute. The court requires them to be “reasonable.” This depends on the estate’s complexity, the time required, the attorney’s experience, and the results obtained. Fees can be an hourly rate, a flat fee, or sometimes a percentage of the estate—though the latter is less common in New York and receives close scrutiny from the courts.
Hiring experienced counsel is a critical part of the executor’s fiduciary duty. A good attorney ensures deadlines are met, tax liabilities are minimized, and distributions are made correctly. But this expertise comes at a cost. These fees, which can range from a few thousand to tens of thousands of dollars or more, are another layer deducted from the estate before beneficiaries see a dollar.
Intentional Planning Can Sidestep These Costs
The common thread among all these costs—court fees, executor commissions, and many legal fees—is that they are tied directly to the probate process. They are the price of using the court system to transfer assets. But probate is not inevitable.
Stewardship. It’s about being deliberate. Assets held within a properly funded revocable or irrevocable trust do not pass through probate. They are managed and distributed by a chosen trustee according to the terms you set, outside the jurisdiction and supervision of the Surrogate’s Court. By placing assets like real estate and investment accounts into a trust, you remove them from the probate estate. The court’s filing fee schedule does not apply to them. The executor’s statutory commission is not calculated on their value. The formal, time-consuming, and expensive court process is largely avoided.
This isn’t about finding a loophole. It is about choosing a different, more direct legal path for your legacy. It requires more thoughtful planning upfront but preserves significant value for the next generation. It is the difference between letting a default public process dictate the cost and creating your own private, efficient plan.
If you are serving as an executor and need to understand your duties, or if you are considering how these costs might affect your own estate, a clear inventory is the first step. We often begin by helping clients map out their assets to project the potential probate costs. Only then can we have a meaningful conversation about a more prudent path for your legacy.
