New York

New York probate runs through the Surrogate's Court of the county where the deceased lived,
under the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law
(EPTL).

With a will

The named executor files a probate petition with the original will, a certified death
certificate, and the names and addresses of the distributees — the people who would inherit
if there were no will. Every distributee must be served with a citation or sign a waiver, even
one who takes nothing under the will. Tracking down an estranged or unknown distributee is the
single most common cause of delay. The court then issues Letters Testamentary.

Without a will

A relative petitions for Letters of Administration, in the priority order set by SCPA 1001 —
spouse, children, grandchildren, parents, siblings, and onward.

Small estates

Where the personal property is under the SCPA Article 13 threshold (long set at $50,000,
excluding real property), a voluntary administration can be used instead: a much shorter form,
a small filing fee, and no full probate. Confirm the current threshold with the Surrogate's Court.

Filing fee and timeline

The filing fee is set on a sliding scale by estate value. A straightforward New York estate
typically takes 9 to 18 months; the court will not normally compel distribution before seven
months from the issue of letters, the period creditors have to present claims.

The spousal right of election

A surviving spouse in New York can elect against the will and take the greater of $50,000 or
one-third of the net estate, regardless of what the will says. Disinheriting a spouse in New
York does not work.

New York wills are governed by EPTL 3-2.1, and it is strict — New York courts have voided
wills for defects that other states would forgive.

Requirements

• In writing, signed by the testator at the end of the document.
• Signed in the presence of, or acknowledged to, two witnesses.
• The testator must declare to the witnesses that the document is their will.
• The witnesses must both sign within a 30-day period.
• The testator must be 18 or older and of sound mind.

No holographic wills

New York does not recognise handwritten, unwitnessed wills, except for members of the armed
forces in active conflict and mariners at sea — and even those expire after a set period. A
handwritten will found in a drawer in New York is very likely worth nothing.

Use a self-proving affidavit

Have the witnesses sign a self-proving affidavit before a notary at the same time as the will.
Without it, the Surrogate's Court has to locate the witnesses years later to prove the will —
sometimes they are dead, moved, or cannot remember.

Divorce

Divorce or annulment automatically revokes gifts and appointments in favour of the former
spouse. Separation alone does not.

Practical points

• Name a successor executor, and check they are eligible: a non-US-citizen non-resident
  generally cannot serve alone as executor in New York, and a felon cannot serve.
• Store the original safely and tell the executor where it is. A copy raises a presumption that
  the original was revoked.

Yes, and unusually for estate law, the amount is set by statute. SCPA §2307 fixes the
executor's commission as a percentage of the money and property received and paid out:

• 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 everything above $5,000,000

So an estate of $500,000 produces a commission of roughly $23,000.

What counts toward the commission

Only assets that pass through the estate and through the executor's hands. Real property that
is specifically devised to a named beneficiary generally does not count, nor do assets passing
by beneficiary designation or survivorship. That distinction changes the number substantially.

Two or more executors

Where the estate is $300,000 or more, each of up to three executors is generally entitled to a
full commission; below that, one commission is divided among them.

Timing and approval

Commissions are normally taken when the estate accounts are settled, either informally with
receipts and releases signed by the beneficiaries or on a judicial accounting. Taking
commissions early, or without agreement, invites a surcharge.

Tax

Commissions are ordinary income to the executor and reportable. An executor who is also a
beneficiary frequently waives the commission, since an inheritance is not taxable income while
a commission is — do the arithmetic before deciding.

A New York executor is reimbursed from the estate for the reasonable and necessary expenses of
administration, on top of the statutory commission.

Normally claimable

• Funeral and burial expenses, which have priority over most other estate debts.
• Surrogate's Court filing fees and certified copies of letters and the death certificate.
• Attorney's fees for the probate proceeding and accounting fees for the estate's returns.
• Appraisals of real property, business interests, art and collectibles.
• Carrying costs on estate real property until sale: taxes, insurance, utilities, maintenance,
  security, and mortgage interest.
• Cleaning out, storing and shipping personal property.
• Bond premiums, where the court requires the executor to be bonded.
• Travel on estate business, at a reasonable rate.
• Postage, couriers, publication of notices, records searches.

Normally not claimable

• The executor's lost wages or personal living expenses — that is what the commission covers.
• Expenses that benefit one beneficiary rather than the estate.
• Property improvements beyond what is needed for sale.
• Undocumented spending.

Practical rule

Obtain an EIN for the estate and open an estate checking account before paying anything, then
run every receipt and disbursement through it. The executor must account to the beneficiaries, and
on a judicial accounting the court will examine the ledger line by line. Contemporaneous records
are the entire defence to a surcharge claim.

Not required. Most New York estates are administered by a family member with an estates attorney
retained at the estate's expense — that is the standard arrangement and it works.

Consider a bank, trust company or attorney-executor when

• The estate includes a closely held business, real estate portfolio, or hard-to-value assets.
• A will contest is likely, or the distributees are already in conflict. New York's citation
  process gives every distributee notice and an opening to object.
• A beneficiary is a minor or incapacitated, so the Surrogate's Court will require a guardian
  ad litem and a long-running trust.
• The intended executor is ineligible — under 18, adjudged incapacitated, a felon, or a
  non-domiciliary alien who cannot serve alone.
• Assets sit in multiple states, requiring ancillary probate.
• The estate may owe New York estate tax, whose "cliff" means an estate slightly over the
  exemption is taxed on its entire value, not just the excess. That is a planning problem worth
  professional attention before death, not after.

Cost

Corporate fiduciaries charge on their own published schedule rather than the SCPA §2307 rates, and
usually impose a minimum annual fee that makes small estates uneconomic. Get the schedule in
writing before naming one.

Middle ground

Name a family member as executor and a professional as successor; or appoint a family member
and a corporate fiduciary jointly. An unwilling nominee can renounce by filing with the
Surrogate's Court, provided they have not already begun to act.