A plain-language guide to probate in the Kings County Surrogate’s Court from Goldberg Sager & Associates.
By Marcel A. Sager, Partner, Goldberg Sager & Associates. J.D., cum laude, Brooklyn Law School; LL.M. in Taxation, New York University School of Law. Admitted in New York, New Jersey, the District of Columbia, and Illinois.
Legally reviewed by Marcel A. Sager
Last updated October 4, 2026
To discuss a Brooklyn estate with our office, call 718-645-6677.
Attorney Advertising. This guide provides general information about New York probate law. It is not legal advice, and reading it does not create an attorney-client relationship. Prior results do not guarantee a similar outcome. Statutes, fees, and court procedures change, and every estate turns on its own facts; please consult a licensed New York attorney about your situation.
Probate in Brooklyn is the proceeding in the Surrogate’s Court of Kings County that proves a will and appoints an executor. When there is no will, the same court appoints an administrator. Either way, the court’s letters give one person the legal authority to collect the assets, pay the debts and taxes, and distribute what is left under New York law.
The court decides who has authority over the property; it does not hand the property out. When it admits a will, it issues letters testamentary to the executor. When there is no will, it issues letters of administration to an administrator. Banks, brokerage firms, co-op boards and title companies deal with the person who holds those letters and with no one else.
Two statutes govern the work. The Estates, Powers and Trusts Law (EPTL) sets the substantive rules: what makes a will valid, who inherits without one, and what a surviving spouse may claim. The Surrogate’s Court Procedure Act (SCPA) sets the procedure: who must receive notice, what a petition contains, and what the court charges.
The Brooklyn court sits at 2 Johnson Street, Brooklyn, NY 11201. Two Surrogates preside: the Honorable Rosemarie Montalbano and the Honorable Bernard J. Graham. For people who file without a lawyer, the court runs the Kings County Surrogate’s Court Help Center, which offers do-it-yourself forms, sample forms and referrals.
No statute sets a deadline for finishing probate, so any fixed month range is an estimate, not a rule. The law fixes clocks and fees instead. Creditors have seven months from letters to present claims, a taxable estate’s return is due nine months after death, and the court’s filing fee follows the estate’s value.
The court’s charge is set by statute. The SCPA 2402 fee schedule runs from $45 for an estate under $10,000 to $1,250 for an estate of $500,000 or more. Lawyers’ fees, appraisals and bond premiums are separate.
We do not quote a typical number of months, because no statute or court rule supplies one. The time an estate takes depends on facts such as whether every relative cooperates and whether real property must be sold.
Two rules and one number explain it. SCPA 1301 limits the small-estate procedure, called voluntary administration, to estates whose personal property is worth $50,000 or less. SCPA 1302 excludes real property from that procedure altogether, so a house in the decedent’s own name rules it out whatever the house is worth. The number comes from the Census Bureau’s QuickFacts for Kings County: the median owner-occupied home in Brooklyn is worth $905,000, about 18 times the $50,000 limit. The real-property rule alone takes most homeowners’ estates into a full proceeding, and the value comparison shows why the shortcut almost never fits a Brooklyn homeowner even apart from that rule.
The same figures cut the other way for renters. QuickFacts puts the owner-occupied rate in Kings County at 29.5 percent, so most Brooklyn decedents rented. Their estates may fit the small-estate procedure. When the apartment is rent-stabilized, a relative’s right to stay is governed by the Rent Stabilization Code, not by the will, so the lease usually sits outside probate entirely.
QuickFacts also reports that 35.3 percent of Kings County residents were born abroad, and many estates have heirs outside the United States. Under SCPA 707, a person who is neither a New York domiciliary nor a United States citizen may serve as fiduciary only with a New York co-fiduciary, and only in the court’s discretion. The rest of this guide refers to this simply as the relative abroad.
High home values, a large rental market and families with relatives abroad: those three facts explain why Brooklyn estates reach the court’s formal procedures more often than the small-estate rules might suggest.
The guide follows an estate in the order a family usually meets the questions:
One procedural point first. The court system has proposed mandatory e-filing for the Bronx, Kings, Queens and Richmond Surrogate’s Courts. As of this writing, the Kings County Surrogate’s Court e-filing protocol still describes NYSCEF e-filing as consensual for probate and administration proceedings, while the Bronx and Richmond County courts state that e-filing is mandatory for such proceedings commenced on or after July 10, 2026. Anyone filing in Brooklyn should confirm the current rule with the court before submitting papers. Even in an e-filed case, the original will and the death certificate must be delivered on paper within two business days.
New York does not require a lawyer for probate, and some families file on their own with help from the court’s Help Center. A lawyer earns the fee when the estate has Brooklyn real estate, a relative who will not sign, an heir abroad, or a tax return.
As a Brooklyn probate lawyer, our firm:
Goldberg Sager & Associates brings more than 70 years of combined legal experience to probate and estate matters for families in Brooklyn and throughout New York City. Marcel A. Sager, a partner of the firm and the author of this guide, has more than 35 years of legal experience. We work with clients in English, Spanish, Russian and Polish. Our probate, estate planning, and estate administration practice covers both settling an estate and planning one. To discuss an estate, call 718-645-6677 or contact our Brooklyn office.
Probate reaches only property the decedent owned alone at death, with no surviving co-owner and no named beneficiary. Joint accounts with survivorship, in-trust-for accounts, insurance and retirement accounts with named beneficiaries, and a married couple’s home usually pass outside the estate. The decedent’s share of a house held as tenants in common, and a co-op held in one name, stay in the estate.
No. A will controls only property that belongs to the estate, and much of what a person owns never becomes estate property. What matters is how each asset was titled on the day of death.
For insurance, pensions and retirement plans, EPTL 13-3.2 says it directly: the rights of a designated beneficiary “shall not be impaired or defeated by any statute or rule of law governing the transfer of property by will, gift or intestacy.” Joint accounts and in-trust-for accounts follow rules of their own. When we review an estate, we begin with the deeds, account statements, stock certificates and beneficiary forms, and only then turn to the will.
A family may still need letters even when most assets pass outside probate. EPTL 1-2.13 defines a personal representative as “a person who has received letters to administer the estate of a decedent.” EPTL 5-4.1 gives the right to sue for a death caused by another’s wrongful act to that personal representative, not to the family directly, and the action must be commenced within two years after the death. Bills to lengthen that period have been introduced, but as of October 4, 2026 the statute posted by the State Senate still reads two years. A family pursuing a wrongful death claim must therefore open an estate in the Surrogate’s Court, even if every bank account passed to a survivor.
Usually not. Under Banking Law 675, a deposit made in the names of two persons, payable to either or to the survivor, belongs to them as joint tenants and is payable to the survivor. Unless there was fraud or undue influence, opening the account in that form is prima facie evidence that both intended a joint tenancy with survivorship. Anyone who disputes it bears the burden of proof. A relative may challenge the account, but the presumption favors the survivor.
An account opened “in trust for” another person, often called a Totten trust, reaches a similar result by a different rule. Under EPTL 7-5.2, if the beneficiary survives the depositor, title to the funds vests in the beneficiary. A will can change that only by an express direction that names the account, the beneficiary and the bank. A general clause leaving “all my bank accounts” to someone else does not do it.
These rules create a problem we see in practice. A decedent kept a joint account with his sister and owned a co-op in his name alone. The sister takes the account. The co-op goes into the estate. The estate now owns the most valuable asset and none of the cash needed to pay the co-op’s monthly maintenance while the apartment is sold or transferred. Anticipating that gap is one of the first tasks in such an estate.
In most cases, yes. EPTL 13-3.2 protects the named beneficiary of a life insurance policy, annuity, pension, retirement plan or similar arrangement against any contrary rule governing wills or intestacy. The protection applies even though the owner could have changed the designation at any time. A will that leaves “everything to my children” does not reach an IRA whose form names a former partner.
The statute has limits. EPTL 13-3.2(b) provides that the section does not limit EPTL 5-1.1-A, the surviving spouse’s right of election, or the estate tax articles of the Tax Law. An asset can pass outside probate and still count toward a spouse’s elective share or toward New York estate tax. Passing outside probate decides how an asset is transferred, not whether it counts for every other purpose.
The words in the deed decide. When the deed is silent, EPTL 6-2.2 supplies the default rules:
A surviving joint tenant or tenant by the entirety takes the whole property without probate. A tenant in common does not: the decedent’s share passes under the will or, if there is none, to the heirs.
The distinction matters in a borough of two-family houses. A brother and sister hold a Brooklyn two-family house on one deed that says nothing about joint tenancy. Under EPTL 6-2.2(a) they are tenants in common. When the brother dies, his half goes through his estate, and his executor, not his sister, deals with that half.
New York treats land differently from money. Real property descends to the distributees or passes to the devisees, rather than passing to the executor as personal property does. Even so, the fiduciary’s powers under EPTL 11-1.1 include managing the property and, where authorized, selling it.
The default rule has a consequence families rarely expect. Under EPTL 6-2.2(f), property passing by intestacy to two or more persons is taken by them as tenants in common. When siblings inherit a parent’s house without a will, each sibling’s share will in turn pass through that sibling’s own estate. One probate leads to another unless the heirs change how they hold title.
No. New York courts treat a co-op as personal property. Matter of Mantineo, 2007 NY Slip Op 51399(U), a Surrogate’s Court decision published by the court system, restates the rule that “cooperative apartments are considered personal property and not real property.” It cites the Court of Appeals in State Tax Commission v Shor, 43 NY2d 151, and the Appellate Division, Second Department, in Matter of Pollack, 18 AD3d 555. What the decedent owned was shares in the cooperative corporation and a proprietary lease, not a deed.
Two consequences follow:
Married couples are treated differently. Under EPTL 6-2.2(c), shares and a proprietary lease transferred to a married couple on or after January 1, 1996 are held as tenants by the entirety unless expressly declared otherwise. The surviving spouse takes the apartment without probate.
| Asset and how it is held | Probate or non-probate? | Governing rule |
|---|---|---|
| Bank account in two names, payable to either or the survivor | Non-probate (passes to the survivor) | Banking Law 675 |
| Account “in trust for” a named beneficiary | Non-probate if the beneficiary survives, unless the will expressly revokes it by naming the account and the bank | EPTL 7-5.1, 7-5.2 |
| Life insurance, annuity, pension or retirement account with a named beneficiary | Non-probate (the will cannot override it), but may count for the spousal election and estate tax | EPTL 13-3.2 |
| Real property deeded to a married couple | Non-probate (tenancy by the entirety) | EPTL 6-2.2(b) |
| Co-op shares and lease transferred to a married couple on or after January 1, 1996 | Non-probate (tenancy by the entirety) | EPTL 6-2.2(c) |
| Property deeded expressly to joint tenants | Non-probate (the survivor takes) | EPTL 6-2.2(a) |
| Property deeded to two or more non-spouses with no joint-tenancy language | Probate as to the decedent’s share | EPTL 6-2.2(a) |
| Property inherited without a will by two or more heirs | Held as tenants in common; each share passes through that heir’s estate | EPTL 6-2.2(f) |
| Real property in the decedent’s name alone | Estate property; descends to distributees or passes to devisees, subject to the fiduciary’s powers | EPTL 11-1.1; EPTL 13-1.1 |
| Co-op shares and lease in the decedent’s name alone | Probate (personal property); transfer governed by the co-op’s documents | Matter of Mantineo; Matter of Pollack, 18 AD3d 555 |
The form of title often decides the size of a Brooklyn probate estate more than the will does. One household can hold all of these at once:
The will reaches only what is left. Because title decides so much, it is also the main planning tool, and we discuss those options on our page about avoiding probate in New York.
To probate a will in Brooklyn, the nominated executor files the original will, a certified death certificate, and a probate petition with the Kings County Surrogate’s Court. Each distributee either signs a waiver and consent or is served with a citation. When the court is satisfied that the will was validly executed, it admits the will and issues letters testamentary.
Letters testamentary are the court’s certificate that the will has been admitted and that the person named in them may act for the estate. Until they issue, no one can sign for the decedent, and a bank or a cooperative’s managing agent will ordinarily refuse to act.
SCPA 1402 governs the petition. It may be presented by any person named in the will as legatee, devisee, fiduciary or guardian, by a creditor or any person interested, and in narrower cases by a party to litigation in which the decedent would have been a party or by the Public Administrator at the court’s direction. In most Brooklyn estates the petitioner is the executor named in the will. The petition is official Form P-1, one of the Surrogate’s Court forms the state publishes. It must identify the distributees, the persons named in the will, any other will of the decedent on file with the court, and the value of the estate, which sets the filing fee under the SCPA 2402 schedule. The court’s own checklist directs that the value exclude joint assets, insurance payable to a named beneficiary and other non-probate property, which is why the sorting in Part I comes first.
Three Kings County practice points. Even when a petition is e-filed through NYSCEF, the original will and the death certificate must be delivered to the court on paper within two business days; the Probate Department (347-404-9670) receives them. The court’s protocol also says not to unstaple the original will when scanning it, and the court system’s guidance for filers adds that if the staples have been removed, the court will expect a notarized affidavit explaining why. After letters issue, each certificate showing that the appointment remains in force costs $6 under the Kings County Surrogate’s Court fee schedule, and institutions commonly ask for one per account or transfer. Our step-by-step article on how to file for probate in New York walks through the petition itself; this Part concentrates on the rules that decide how long the proceeding takes.
Everyone who could lose something if the will is admitted must be brought before the court. SCPA 1403 requires that process issue to the distributees, meaning the people who would inherit without a will; to the executor named in the will if that person is not the petitioner; and to anyone named as beneficiary, executor, trustee or guardian in a later instrument, or in another will of the same testator on file in the court, whose rights are adversely affected by the will being offered.
Each of those people has a choice. A person who accepts the will may sign a waiver of process and consent to probate, Form P-4, acknowledged before a notary. A person who does not sign must be served with a citation, Form P-5, which states a return date on which the person may appear and object. The citation accuses no one of anything. It is the court’s notice that the matter will be decided on that day.
Service follows SCPA 307 and SCPA 308. A citation may be delivered personally or sent by registered or certified mail, inside or outside New York, and the court may order another method when those cannot be accomplished with due diligence. SCPA 308 fixes the minimum time between service and the return date:
Under SCPA 1410, objections must be filed on or before the return date or within the time the court directs. A person entitled to process may first examine the attesting witnesses and the attorney who drafted the will under SCPA 1404; objections are then due within ten days after those examinations end.
A second kind of notice goes to people who are not cited. SCPA 1409 requires that, before letters issue, a notice of probate, Form P-6, be mailed to each person named in the will as legatee, devisee, trustee, guardian or substitute fiduciary who has not been served or appeared, with an affidavit of mailing filed in court. If the will leaves a gift to an unnamed charity or in an unspecified amount, the Attorney General receives the notice as well.
These rules explain a Brooklyn pattern. For a relative abroad, SCPA 308 requires at least thirty days between service and the return date, and SCPA 307 contemplates mail service or a court-ordered alternative when personal delivery is impractical. For a distributee in Brooklyn served by hand, the minimum is ten days. A signed waiver removes the clock altogether. The calendar of a Brooklyn probate is set less by the court than by the slowest signature, so the first task in any estate is to learn who will sign and who must be cited.
Proof of execution rests on the attesting witnesses, but New York seldom requires them to appear. SCPA 1404 provides that at least two attesting witnesses be produced and examined when they are within the state and able to testify. SCPA 1406 supplies the usual substitute. An attesting witness may sign an affidavit, at the testator’s request when the will is signed or after death at the request of the named executor, the proponent or any person interested, stating the facts that establish the will’s genuineness, the validity of its execution, and the testator’s competence. The court accepts that affidavit as though the witness had testified unless a party entitled to process objects or the court for any other reason requires the witness to appear. After death, a court-certified photographic copy of the will may be shown to the witness in place of the original, so a witness in another state can sign the post-death form, P-3, without the original leaving the courthouse.
Where a witness is unavailable, SCPA 1405 lets the court dispense with the testimony on account of death, absence from the state, incompetency, inability to testify for physical or mental reasons, or because the witness cannot be found within the state with due diligence; the application is Form P-8. Two limits matter. First, where a witness is merely outside New York and the testimony can be obtained with reasonable diligence, SCPA 1405(2) provides that the court may require it and must require it on the demand of any party. In Matter of Smith, a 2010 Nassau County Surrogate’s decision, the witness lived in Florida; because the testimony could be obtained with reasonable diligence, the objecting daughter’s demand that it be taken by commission had to be granted. Second, if every witness is dead or unavailable, SCPA 1405(4) allows probate on proof of the handwriting of the testator and of at least one witness, together with other facts sufficient to prove the will; the handwriting proof is Form P-9.
Whatever route is taken, SCPA 1408 imposes an independent duty. Before admitting a will, the court must inquire into the facts and be satisfied of the will’s genuineness and the validity of its execution, whether or not anyone objects. The Kings County Surrogate’s Court applied that rule in Matter of Shabtai in 2024, denying probate after trial because due execution had not been proved.
A will signed with the attesting witnesses’ affidavit attached turns a later search for witnesses into a one-page filing. That is why our wills and other estate planning documents practice treats the affidavit as part of every execution.
A copy can be probated, but the proof required is demanding. SCPA 1407 permits a lost or destroyed will to be admitted only if it is established that the will has not been revoked, execution is proved as it would be for an existing will, and all of the provisions are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft proved to be true and complete.
The first requirement is the hard one. When an original last known to be in the testator’s possession cannot be found after death, the courts presume that the testator destroyed it with intent to revoke, and the proponent must overcome that presumption. The presumption never arises where the will was never in the testator’s possession, or where it is shown to have existed after the death and was lost or destroyed afterward, as the Nassau County Surrogate observed in Matter of Chadda in 2012.
Matter of McKenna, decided by the Appellate Division, Second Department, in 2023, shows the rule at work. The attorney who drafted the will had kept it, so it had never been in the decedent’s possession and no presumption of revocation arose. The petitioners submitted the attorney-drafter’s affirmation, an attesting witness’s affidavit and an unsigned conformed copy, which proved execution and the will’s provisions. The Second Department, which hears appeals from Brooklyn, held that the Surrogate erred in refusing to admit the copy.
Preliminary letters testamentary are temporary authority granted before the will is admitted, and they exist for the delays described above. Under SCPA 1412, once a probate petition has been filed and process has issued, an executor named in the will may request preliminary letters; the court may also accept the request before process issues on such proof as it requires. Only the named executor may apply, on Form P-2. The court may limit the letters, for example to the receipt of assets, and may revoke them at any time. If the will dispenses with a bond, SCPA 1412(5) directs the court to grant preliminary letters without one unless extraordinary circumstances warrant it. Preliminary letters let an estate collect assets, protect property and pay carrying charges while a cited relative decides whether to object or an out-of-state witness is located.
Three routes exist, and none requires a lawyer. First, the Kings County Surrogate’s Court has made WebSurrogate, the court system’s free online service, available for Brooklyn files. It searches Surrogate’s Court files by party name, narrowed by date of death, and by file number, and it links to document images filed on or after February 19, 2014, subject to the access restrictions in 22 NYCRR 207.64. Its Will Search lists wills filed with a Surrogate’s Court for safekeeping during the testator’s life under SCPA 2507, a filing that costs $45 in Kings County, although those documents are not open to public view. Second, an in-person search in the court’s Record Room at 2 Johnson Street is free. Third, the court’s cashier accepts mail requests for an estate search, $30 for a search covering the last twenty-five years and $90 for an older one, with the decedent’s name, date of death and last known address and a self-addressed stamped envelope. The court does not search by telephone. A person who holds a will and will not produce it may be compelled to do so in a proceeding under SCPA 1401.
The following example is illustrative only. The people and facts are fictional and do not describe a real case.
Yvette Marchand died at home in Flatbush in 2026. Her daughter Denise, who lives in Brooklyn, found the original will in a dresser drawer. It was signed in 2014 at a lawyer’s office, names Denise as executor, dispenses with a bond, leaves the residue equally to Denise and her brother Paul, and makes a $5,000 gift to a godchild. No affidavit of the attesting witnesses was attached. One witness, a former neighbor, still lives in Brooklyn; the other has moved to Florida. Mrs. Marchand’s checking account was held jointly with her sister Claudette, who took it on death under Banking Law 675. The cooperative apartment was in Mrs. Marchand’s name alone, and the maintenance falls due on the first of each month. Paul, who lives in New Jersey, has not returned the waiver Denise mailed him.
Denise may petition under SCPA 1402 as the named executor. Under SCPA 1403, the distributees are Denise and Paul; Claudette is not a distributee while her sister’s children survive, so she is not cited, whatever she took from the joint account. Paul’s silence does not block probate. It means that a citation will be served on him in New Jersey by certified mail under SCPA 307, at least twenty days before the return date under SCPA 308, and that the court will take up the petition on that date whether or not he appears. The godchild is not cited but receives a notice of probate under SCPA 1409. The Brooklyn witness signs a Form P-3 affidavit after being shown the original or a court-certified copy. For the Florida witness, Denise asks the court to dispense with testimony under SCPA 1405. If Paul neither objects nor demands that witness, the court may admit the will on the Brooklyn witness’s affidavit and the other proof, once it is itself satisfied under SCPA 1408. If Paul objects to proof by affidavit, SCPA 1406 requires the witnesses to be produced, and if he demands the Florida witness’s testimony, SCPA 1405(2) requires the court to order it, which the court may direct be taken by commission rather than by travel. Because process has issued and Denise is the named executor, she may request preliminary letters under SCPA 1412 and, since the will dispenses with a bond, ordinarily receives them without one, subject to any limits the court sets. The letters let her deal with the managing agent and collect whatever stood in her mother’s sole name. Whether there is cash to pay the maintenance depends on what those assets are; the joint account is gone. As of the return date, Paul has not answered, and no one has yet asked anything of the witness in Florida. The will’s admission, and its timing, now depend on him.
| Item | Purpose | Governing rule or official form |
|---|---|---|
| Petition for probate | Starts the proceeding; identifies distributees, persons named in the will, other wills on file, and the estate’s value for the filing fee | SCPA 1402; Form P-1 |
| Original will and any codicils | The instrument offered; filed on paper within two business days even in an e-filed case; staples left intact | Kings County e-filing protocol; court guidance |
| Certified death certificate | Proof of death; filed with the petition, on paper | Court checklist; Kings County e-filing protocol |
| Affidavit of attesting witness | Proof of execution without live testimony | SCPA 1406; Form P-3 (after death) |
| Application to dispense with testimony; affidavit proving handwriting | Used when a witness is dead, absent, incompetent or cannot be found | SCPA 1405; Forms P-8 and P-9 |
| Waiver of process; consent to probate | Signed by each distributee or other person entitled to process who accepts the will | SCPA 1403; Form P-4 |
| Citation and affidavit of service | For each person entitled to process who does not sign | SCPA 1403, 307, 308; Forms P-5 and P-7 |
| Notice of probate with affidavit of mailing | Mailed to legatees, devisees and named fiduciaries not cited; to the Attorney General for unnamed-charity or unspecified-amount gifts | SCPA 1409; Form P-6 |
| Application for preliminary letters (optional) | Temporary authority for the named executor while probate is pending | SCPA 1412; Form P-2 |
| Filing fee and certificates of letters | Fee set by estate value; $6 for each certificate of letters | SCPA 2402; Kings County fee schedule |
When a Brooklyn resident dies without a will, EPTL 4-1.1 decides who inherits, and the Kings County Surrogate’s Court appoints an administrator in the order fixed by SCPA 1001. If the decedent’s personal property is worth $50,000 or less and there is no real estate in the decedent’s name, an affidavit under SCPA Article 13 can replace the full proceeding.
The statute fixes the shares; the family’s sense of fairness does not. EPTL 4-1.1 applies to all property not disposed of by will, and it works down a list of relatives, stopping at the first class with a survivor. A surviving spouse who is also survived by children receives $50,000 plus one-half of the rest; the children divide the balance. A spouse with no children takes everything, as do children with no surviving spouse. Only if there is neither spouse nor descendant does the estate pass to parents, then to siblings and their descendants, then to grandparents and their descendants, with the last stop at great-grandchildren of grandparents. The table below sets out the order in full.
“Issue” means descendants of every generation, and they take “by representation,” the term defined in EPTL 1-2.16: when a child has died before the parent leaving children of his or her own, those grandchildren take in the deceased child’s place.
Children born outside marriage inherit under EPTL 4-1.2. A non-marital child always inherits from the mother and her relatives. The child inherits from the father, and the father’s relatives from the child, only if parentage was established by an order of filiation or a filed acknowledgment of parentage, by a signed instrument acknowledging parentage that satisfies the statute’s requirements, or by clear and convincing evidence, which may include a genetic marker test or proof that the father openly and notoriously acknowledged the child as his own. A support agreement alone is not enough. In an estate with no will, that proof is often the first contested question.
A distributee who is a minor does not receive the share directly. EPTL 5-3.1 illustrates the rule: a family set-off to a child under twenty-one of up to $10,000 is handled under SCPA 2220, the court’s deposit provision, and larger amounts are governed by the guardianship statute. A minor’s inheritance in general is protected the same way, through a court-supervised deposit or a guardian of the property appointed by the Surrogate’s Court, which is where our guardianship practice enters many intestate estates. Our page on what happens when a loved one dies without a will in New York covers the practical side of these rules; this Part concentrates on the computation and the procedure.
| If the decedent is survived by | Who inherits | Share |
|---|---|---|
| A spouse and issue (children, or the descendants of a deceased child) | Spouse and issue | Spouse: $50,000 plus one-half of the balance. Issue: the rest, by representation |
| A spouse and no issue | Spouse | The whole estate |
| Issue and no spouse | Issue | The whole estate, by representation |
| One or both parents, and no spouse or issue | The surviving parent or parents | The whole estate |
| Issue of parents (siblings, nieces and nephews), and no spouse, issue or parent | Issue of parents | The whole estate, by representation |
| Grandparents or their issue, and none of the above | The paternal and maternal sides | One-half to each side’s surviving grandparents or their issue, by representation, no more remote than grandchildren of the grandparents (first cousins); the whole to one side if the other has no survivor |
| Great-grandchildren of grandparents only | Great-grandchildren of grandparents | One-half to each side, per capita; the whole to one side if the other has no survivor |
The following example is illustrative only. The people and figures are fictional and do not describe a real case.
Hector Ramos of Sunset Park dies without a will, survived by his wife Ana and two adult children, Luis and Carmen. Nothing in what follows turns on who cared for him in his last years or whom he would have chosen; that is the case for writing a will. After the joint accounts and the life insurance payable to Ana pass outside the estate under the rules in Part I, the estate property, a brokerage account and his half-interest in a two-family house held with his brother as tenants in common, is worth $380,000. Under EPTL 4-1.1(a)(1), Ana receives $50,000 plus one-half of the remaining $330,000, or $215,000 in all. Luis and Carmen share the other $165,000, $82,500 each. Had Carmen died before her father leaving two children, her $82,500 would pass to those grandchildren by representation. Had Hector left no spouse, the children would take everything; had he left Ana but no descendants, she would.
The court does not choose freely. SCPA 1001 provides that letters of administration “must be granted” to the eligible distributees in a fixed sequence: the surviving spouse; the children; the grandchildren; either parent; the brothers or sisters; and then any other distributee, with preference to the person entitled to the largest share. Where several distributees stand on the same level, the court may appoint one or more of them. The Appellate Division, Second Department, applied the rule to a Brooklyn estate in Matter of Jordan in 2011, affirming the Kings County Surrogate’s decision to issue letters to the surviving spouse over another petitioner because the spouse has priority over all other distributees.
Eligibility is a separate question from priority. The disqualifications in SCPA 707 apply to administrators as they do to executors, so a child who lives abroad and is not a United States citizen cannot serve alone. Notice follows the pattern of Part II: under SCPA 1003, every eligible person with a prior or equal right to letters who has not renounced must be served with process, and any of them may instead sign an acknowledged waiver. With the consents of all eligible distributees, SCPA 1001(6) allows letters to issue to a distributee further down the list, or to a person who is not a distributee at all, which is how families commonly resolve the situation in which the spouse is elderly or the children live far away.
An administrator, unlike an executor whose will dispenses with a bond, must ordinarily post one. SCPA 805 requires a bond before letters issue, but permits the court to dispense with it or reduce it where the administrator is entitled to the whole estate or where all persons interested file acknowledged consents; if only some consent, the court fixes an amount that protects creditors and the non-consenting heirs. The premium is an estate expense, so the distributees’ consents save the estate money as well as time. In Kings County these filings go through the court’s Administration Department, reachable at 347-404-9690. Where there is a will but no executor able to serve, the parallel proceeding is for letters of administration with the will annexed under SCPA 1418, and SCPA 1001(9) permits ordinary letters of administration where a filed will has not been offered for probate within a reasonable time.
New York has the procedure, though not under that name. The court system’s CourtHelp page on small estates explains that an estate of $50,000 or less in personal property is handled by a proceeding called voluntary administration, governed by SCPA Article 13. Under SCPA 1301, the $50,000 is measured without counting the property set off to the family under EPTL 5-3.1. SCPA 1302 excludes any interest in New York real property, so the procedure is unavailable if the decedent owned a house, a condominium or land in his or her name alone; property owned jointly with a survivor does not disqualify the estate, because it passes outside it.
The filing is an affidavit rather than a petition. The official form is the “Affidavit in Relation to Settlement of Estate Under Article 13, SCPA,” which the court’s free Small Estate Affidavit DIY program prepares online. The program is not e-fileable, so the printed affidavit, a certified death certificate and the original will, if there is one, are filed with the clerk. SCPA 1304 sets the filing fee at $1 and directs the clerk to mail notice of the proceeding to each distributee and beneficiary named in the affidavit. The clerk issues a short certificate for each asset listed, and under SCPA 1305 a bank or other holder that pays the voluntary administrator on presentation of the certificate and a receipt is fully discharged. SCPA 1303 gives the right to act first to the surviving adult spouse, then in order to a competent adult child or grandchild, parent, brother or sister, niece or nephew, or aunt or uncle; where a will has been filed, the executor named in it goes first.
The voluntary administrator’s authority is real but bounded. Under SCPA 1306 he or she holds an administrator’s powers over the personal property, may sell it for its reasonable cash value and may sue a holder who refuses to pay, but the powers end if a full proceeding is later commenced and letters issue. Under SCPA 1307 the money must be kept in a separate estate account and accounted for in a report filed with the court. Two limits deserve attention before filing. A voluntary administrator cannot transfer title to real property. And where a wrongful death or personal injury claim may exist, the court’s own guidance is to file a full probate or administration proceeding even if the personal property is under $50,000, because the recovery could exceed the limit many times over.
New York lets a surviving spouse collect a meaningful sum directly from a bank or employer before any court is involved. Under SCPA 1310, a bank, broker, insurer, employer or government agency may pay a surviving spouse up to $30,000 of what it owed the decedent, immediately on death, on the spouse’s affidavit that all such payments do not exceed that figure. Thirty days after death, up to $15,000 may be paid to the spouse, a child eighteen or older, a parent, a sibling, a niece or nephew, or a person who paid the funeral at a relative’s request, in that order of preference. Six months after death, up to $5,000 may be paid to a distributee or a funeral creditor where the decedent left no spouse or minor child. A payment made in good faith on such an affidavit discharges the payer even if the affidavit proves false. The recipient remains accountable to any fiduciary later appointed, except that a spouse’s payments are credited against the family exemption.
That exemption is the second half of the picture. EPTL 5-3.1 provides that certain property is not an asset of the estate at all but vests in the surviving spouse or, if there is none, in children under twenty-one: household furniture, appliances, clothing and jewelry not disposed of by the will, up to $20,000; books, pictures and digital media up to $2,500; farm animals and machinery up to $20,000; one motor vehicle up to $25,000, or cash in that amount instead; and money and marketable securities up to $25,000, reduced by any excess the family pays to keep the other items and applied first to funeral expenses if the estate cannot otherwise pay them.
These statutes form a ladder, and in a borough where most households rent and many decedents leave no real property, families climb it often. The first rung, SCPA 1310, requires no court. The second, EPTL 5-3.1, removes the set-off property from the estate before the $50,000 line in SCPA 1301 is drawn, so a widow whose husband left a $20,000 car, $25,000 in a checking account and $30,000 in a brokerage account still qualifies for voluntary administration. The third rung, Article 13, costs $1 and produces certificates from the clerk rather than letters from a judge. Only an estate holding real property in the decedent’s own name, or more than $50,000 beyond the exemption, must climb to full administration. For a Brooklyn rental household, the first stop is often the bank, not the courthouse.
Intestacy puts a premium on proving who the relatives are, and that burden falls hardest on families with roots elsewhere. When a decedent’s siblings, nieces and nephews live in other countries, the birth, marriage and death records that establish the family tree must be gathered abroad and translated. Three rules then apply. A distributee who is neither a New York domiciliary nor a United States citizen cannot serve alone under SCPA 707, so a family abroad needs a New York co-administrator or must consent under SCPA 1001(6) to someone else. When the only distributees are cousins on one side of the family, SCPA 1001(1)(f)(ii) directs that letters issue to the Public Administrator rather than to the cousins. And when no eligible distributee is appointed, SCPA 1001(8) makes the Public Administrator the fiduciary of last resort; Kings County has one for such estates.
The office is not an adversary of the family. In Matter of Roberts, a 2010 Surrogate’s Court decision, alleged nieces and nephews who proved their kinship were held to have statutory priority over the Public Administrator, even though the names and whereabouts of other possible relatives remained unknown. The sooner the family tree is documented, the sooner a relative, rather than a public official, is in charge of the estate.
An executor or administrator collects the estate’s assets, pays its debts, taxes and expenses, and distributes what remains to the people entitled to it, under the supervision of the Surrogate’s Court. The office carries personal responsibility, runs on statutory clocks measured from the date letters issue, and ends with an accounting and a release.
The fiduciary stands in the decedent’s place for one purpose: to settle the estate. Before letters issue, the appointee qualifies under SCPA 708 by filing an oath and, where one is required, the bond discussed in Part III. From then on the duties follow a fixed order. The fiduciary gathers the probate assets, opens an estate account, and keeps estate property separate. EPTL 11-1.6 is explicit: every fiduciary shall keep property received as fiduciary separate from his or her own, and every transaction must be made in the fiduciary’s name as such. Violating that rule is a misdemeanor. In practice the first week consists of obtaining certificates of letters, obtaining a taxpayer identification number for the estate, and moving the decedent’s accounts into the estate’s name.
The fiduciary’s powers come from EPTL 11-1.1, which authorizes the collection and management of estate property and, where the will or the court permits, the sale of real property, and from the prudent investor rule of EPTL 11-2.3, which governs how estate funds are held while the estate is open. Debts are paid in the order SCPA 1811 prescribes: reasonable funeral expenses, subject to the expenses of administration, come before all debts; then debts entitled to preference under federal law; then taxes assessed on the decedent’s property before death; then judgments and decrees docketed against the decedent; and then all other debts, with no preference among debts of the same class. A fiduciary who pays out of order, or who pays beneficiaries before the creditors’ period has run, answers for the shortfall personally. Part V covers claims and taxes in detail.
Taxes are part of the office. Beyond any New York estate tax return, an estate is a taxpayer in its own right. Under the Instructions for Form 1041, the fiduciary must file a federal income tax return for the estate for any tax year in which it has gross income of $600 or more, or in which any beneficiary is a nonresident alien. Interest earned on an estate account can cross that threshold by itself, and a Brooklyn estate with a beneficiary abroad crosses it regardless of income.
The will’s nomination, or the statutory order in SCPA 1001, decides who has the right to serve; SCPA 707 decides who is permitted to. Letters may not issue to a minor or to an incompetent. They may not issue to a non-domiciliary noncitizen unless that person serves with at least one co-fiduciary who is a New York resident, and even then the appointment is in the court’s discretion. And they may not issue to a person who lacks the qualifications of a fiduciary “by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.” Two further grounds are discretionary: the court may declare ineligible a person who cannot read and write English, and a person convicted of a felony whose crime may be adverse to the welfare of the estate, such as embezzlement or another misappropriation of money or breach of fiduciary duty. A felony conviction unrelated to money is no longer an automatic bar.
Two of these rules bear directly on Brooklyn families. A will that names a relative abroad as sole executor produces a petition the court cannot grant as written; the practical answer is a New York co-executor named in advance. The English-language ground is discretionary, not automatic, and the firm’s own clients speak Spanish, Russian and Polish; naming a co-fiduciary, or documenting the nominee’s ability to understand the estate’s papers, answers it without passing over a trusted relative. Both problems are solved more cheaply at the drafting stage, which is why the choice of executor is a central part of our estate planning work.
New York sets no finish line, but it sets an inquiry point. Under 22 NYCRR 207.42, if an estate has not been fully distributed, or a final accounting filed, within two years of the first permanent letters, or within three years if a federal estate tax return is required, the fiduciary must file a short report stating the approximate gross estate, what has been distributed, what remains and why the estate is still open. The court may then take steps to expedite the administration. The rule says of itself that these periods “are not intended to set a standard time for completion of estate administration, but rather to fix a period after which inquiry may be made by the court.” A fiduciary who ignores the inquiry pays for it: in Matter of Johnson, decided by the Appellate Division, Third Department, in 2018, an executor’s commissions were disallowed after years of delay in filing the report and the final account.
Before the two-year mark, several shorter clocks run from the date letters issue. Under SCPA 1802, a fiduciary who pays claims and distributions in good faith is protected against creditors who present claims more than seven months after letters. Under EPTL 11-1.5, the fiduciary may, but need not, pay legacies or distributive shares before those seven months have run, subject always to the duty to retain enough to pay expenses, debts and taxes; after seven months, a beneficiary who is refused payment on demand may bring a proceeding to compel it, and under EPTL 11-A-2.1 a beneficiary of a cash legacy becomes entitled to income on it from that date. Under 22 NYCRR 207.20, the fiduciary must file the court’s Inventory of Assets form within nine months of letters, failing which the court may refuse certificates, revoke the letters and disallow commissions. The New York estate tax return, where one is required, is also due nine months after death. The table collects them.
| Obligation or protection | When it runs | Governing rule |
|---|---|---|
| Qualify by oath (and bond where required); obtain certificates of letters | On appointment | SCPA 708; SCPA 805; SCPA 2402 |
| Keep estate property separate and transact in the fiduciary’s name as such | From the first receipt of assets | EPTL 11-1.6 |
| Spouse’s right of election must be filed | Within six months after letters, and no later than two years after death | EPTL 5-1.1-A |
| Good-faith payments protected against late creditor claims | Seven months after letters | SCPA 1802 |
| Legacies and distributive shares need not be paid; demand and proceeding possible afterward; income accrues on cash legacies | Seven months after letters | EPTL 11-1.5; EPTL 11-A-2.1 |
| Voluntary judicial accounting may be filed | After seven months, or after a published claims period expires | SCPA 2208 |
| Inventory of Assets form filed with the court | Within nine months after letters | 22 NYCRR 207.20 |
| New York estate tax return and payment, where required | Nine months after death | Tax Law Article 26 |
| Federal estate income tax return (Form 1041) | Each tax year with $600 or more of gross income, or any nonresident alien beneficiary | IRS Form 1041 instructions |
| Report of estate not fully distributed | Two years after first permanent letters; three years if a federal estate tax return is required | 22 NYCRR 207.42 |
An executor or administrator is paid by statute, not by agreement, unless the will provides otherwise or the fiduciary waives. SCPA 2307 fixes the rates on sums received and paid out: 5 percent of the first $100,000; 4 percent of the next $200,000; 3 percent of the next $700,000; 2½ percent of the next $4,000,000; and 2 percent above $5,000,000. The commission is computed separately for receiving and for paying out, at one-half of those rates for each. A sole executor who receives and pays out a $400,000 estate earns $5,000 on the first $100,000, $8,000 on the next $200,000 and $3,000 on the last $100,000, or $16,000 in all. Property received or distributed is valued as money for the calculation, with one exception: a specific legacy or devise, such as a house or a particular account left to a named person, earns no commission, because the fiduciary neither receives nor pays out its value.
Two executors do not always split one fee. Under SCPA 2307(5), where the estate is under $100,000, one commission is divided among the fiduciaries according to the work each did; where it is $100,000 or more but under $300,000, each of up to two fiduciaries receives a full commission and more than two share two; where it is $300,000 or more, each of up to three fiduciaries receives a full commission and more than three share three. Our detailed explanation of how executor commissions are set under SCPA 2307 works through the arithmetic. The fee is predictable from the estate’s size, and a fiduciary who is also a beneficiary should decide early whether taking a commission, which is taxable income, is worth more than the inheritance it reduces.
A separate rule governs lawyers. Under SCPA 2307-a, when the attorney who drafted the will, or an affiliated attorney or employee, is named as executor, the testator must be told before signing that anyone may serve as executor, that any executor is entitled to statutory commissions, that an attorney who also performs legal services for the estate is entitled to legal fees in addition to commissions, and that without a written acknowledgment of these disclosures the attorney-executor receives only one-half of the statutory commissions. The acknowledgment must be a writing separate from the will, signed before at least one witness other than the executor-designee, and filed with the petition for letters. Absent it, the attorney-executor’s commissions are halved.
The courts read SCPA 2307-a to the letter. Surrogates have limited attorney-executors to one-half commissions where the acknowledgment omitted a required statement, where the disclosure appeared in the will itself rather than in a separate writing, and where acknowledgments had been signed for earlier wills but not for the one admitted to probate. A disclosure form that was correct when first printed must be updated when the law changes.
An estate ends with an accounting, and most Brooklyn estates end with an informal one. The fiduciary prepares a statement showing everything received, everything paid, and the proposed distribution, and each beneficiary who is satisfied signs a receipt and release. Under SCPA 2202 those instruments may be filed or recorded with the court, and under SCPA 2203 the fiduciary may then petition for a decree releasing and discharging him or her, on a showing that all taxes have been paid, that the time for creditors to present claims has expired, that known debts and administration expenses have been paid, and that acknowledged releases have been obtained from everyone who would otherwise have to be cited. Where a beneficiary will not sign, or the fiduciary wants the protection of a judgment, SCPA 2208 permits a voluntary judicial accounting once seven months have passed or the published claims period has expired, and every interested person is cited to raise objections. Where the fiduciary will not account at all, SCPA 2205 allows the court, on its own initiative or on an interested person’s petition, to compel an account and to suspend a fiduciary who fails to file one. Judicial accountings and the disputes that arise in them are part of Marcel A. Sager’s Surrogate’s Court practice; the informal route, where the family can agree, is faster and costs the estate less.
The 22 NYCRR 207.42 report is routine in Brooklyn, not a mark of neglect, because of what a Brooklyn estate holds. The typical probate estate here contains a house or a co-op, and often little else. Real property passes to the heirs or devisees subject to the fiduciary’s powers, so selling it requires authority under EPTL 11-1.1, a buyer, and, for an administrator, the further bond that SCPA 805 demands before sale proceeds are received unless the heirs have consented to dispense with it. A co-op adds the board’s approval. Add the citation and waiver stage described in Part II, lengthened by a relative abroad, and the nine-month tax return, and the two-year mark arrives before the house has closed. The report asks only what remains and why. The fiduciary who files it on time, keeps the estate account separate, and has the inventory on file has done what the rules require. The one who distributed early, or cannot show where the money went, is the one for whom the inquiry becomes an accounting proceeding.
Before any beneficiary is paid, a New York estate pays its funeral and administration expenses, the debts that creditors present within the statutory period, any Medicaid claim, and the estate taxes due. Most Brooklyn estates owe no estate tax, because New York’s 2026 exclusion is $7,350,000 and the federal exclusion is $15,000,000, but the creditors’ rules apply to every estate.
Debts do not die with the debtor, but they do not pass to the family either. They become claims against the estate, and the fiduciary pays them from estate assets in the order SCPA 1811 fixes: reasonable funeral expenses, subject to the expenses of administering the estate, come first; then debts entitled to a preference under federal law; then taxes assessed on the decedent’s property before death; then judgments and decrees docketed against the decedent; and then everything else, with no preference among debts of the same class. If the estate cannot pay every class in full, the lower classes go unpaid.
Relatives are not liable for a decedent’s debts because they are relatives. A person who co-signed a loan or held a credit card jointly remains liable on that obligation in his or her own right, but that is the person’s own debt, not an inheritance of the decedent’s. The one route by which an estate’s creditor can reach a family member is EPTL 12-1.1, which makes distributees and testamentary beneficiaries liable, in a lawsuit, up to the value of the property they received, for debts, funeral and administration expenses and taxes that were not collected from the estate. Even then the creditor must first satisfy the court that the estate itself cannot pay, and EPTL 12-1.2 sets the order in which beneficiaries bear the burden: those who took without a will first, then residuary beneficiaries, then general beneficiaries, and specific beneficiaries last. For a fiduciary the lesson is the one Part IV stated: distribute too early and the shortfall becomes a lawsuit against the people who received the money.
The family exemption in EPTL 5-3.1, described in Part III, sits outside this system. The furniture, the car and up to $25,000 in cash set off to a surviving spouse or minor children are, in the statute’s words, not assets of the estate, and the cash set-off is reached only to the extent the estate cannot otherwise pay the funeral.
New York gives creditors a procedure and a clock, and both protect the fiduciary who follows them. Under SCPA 1803, a claim must be presented in writing, stating the facts on which it rests and the amount, by personal delivery to the fiduciary or by certified mail with a return receipt; the fiduciary may demand an affidavit that the amount is justly due and that any payments have been credited. Claims for administration expenses and claims of the United States or the State are exempt from these formalities. Under SCPA 1806 the fiduciary must respond in writing, allowing the claim or rejecting it with reasons, and a claim not allowed within 90 days is deemed rejected. A rejected claim is then decided in one of two places. Under SCPA 1810 the creditor may sue in another court, but only if the action is commenced within 60 days after the rejection; otherwise, under SCPA 1808, the claim is tried when the fiduciary’s account is judicially settled, and the account must list every rejected claim and the reason for rejecting it. Under SCPA 1809, either side may ask the Surrogate’s Court to rule on a doubtful claim without waiting for the accounting.
The clock is SCPA 1802. A fiduciary who, after seven months from the issuance of letters, pays claims and makes distributions in good faith is not personally chargeable for a claim that was not presented in time. The seven months is a shield for the fiduciary, not a bar to the creditor, who may still pursue whatever remains in the estate or, under EPTL 12-1.1, the beneficiaries who received it. One timing rule favors creditors: CPLR 210(b) excludes the eighteen months following death from the time within which an action must be brought against the executor or administrator, so a claim that was nearly time-barred when the decedent died does not expire during the months it takes to appoint a fiduciary.
In a Brooklyn estate the usual claims are small and specific: the last medical bills, a credit card, utilities on the apartment, the funeral home’s balance. The funeral home may also be paid directly from a bank account under SCPA 1310, as Part III explained, without waiting for letters. The claim that changes the arithmetic is the one from Medicaid.
Sometimes, and the rules that decide it are the title rules from Part I. Under Social Services Law 369, the State must seek recovery of Medicaid correctly paid for a recipient who was 55 or older when the care was provided, or who was permanently institutionalized, from the recipient’s estate after death. For this purpose New York defines the estate narrowly. Under Social Services Law 369(6) and 18 NYCRR 360-7.11, the estate is the property passing under a will or by intestacy; a 2011 amendment that reached jointly held property, retained life estates and trusts was repealed, and the probate-estate definition governs. Property that passes by survivorship, by beneficiary designation or under a trust is outside the Medicaid claim, while a house in the decedent’s name alone is inside it. The Office of the Medicaid Inspector General, which administers recovery through a contract vendor, states in its estate recovery guidance that its claim is against the estate assets only.
Recovery is deferred, not forgiven, in several situations. No recovery may be pursued during the lifetime of a surviving spouse, while a child under 21 survives, or while a child of any age who is certified blind or disabled survives. Recovery against the home is also deferred while a qualifying sibling or adult child who lived there continues to reside in it, and resumes when that person leaves or the property is sold. The estate’s representative or a beneficiary may request a waiver for undue hardship within 30 days of the recovery notice. Recovery is a claim against the estate’s assets; where the estate includes real property, the State may assert that claim and may seek a lien on the property to the extent of the decedent’s interest.
The borough’s numbers show why this claim matters here. The median Brooklyn home is worth $905,000, 15.8 percent of residents are 65 or older, and whether the home is reachable turns entirely on how it was titled. A house in a widowed parent’s sole name is a probate asset and a Medicaid asset; the same house held jointly with a child, or transferred to an irrevocable trust years earlier, is neither. Those choices belong to the planning years, which is why our elder law and Medicaid planning practice and our work with irrevocable trusts are, in Brooklyn, as much about the house as about the nursing home bill. After death, the fiduciary’s job is narrower: find out whether the decedent received Medicaid after 55, answer the State’s questionnaire, and pay no beneficiary until the claim is resolved or deferred.
For a death in 2026, a New York estate tax return is required only when the federal gross estate plus includible gifts exceeds $7,350,000, and tax is owed only when the taxable estate exceeds that figure. The Department of Taxation and Finance’s estate tax page, cited in the opening section, states the thresholds. The filing test uses the gross estate before debts and expenses, so an estate with a $7,500,000 house and a $2,000,000 mortgage must file even though it will owe nothing. Taxable gifts made within three years before death are added back, except gifts made before April 1, 2014, gifts made while the decedent was a nonresident, and gifts of real or tangible property located outside New York. The return and any payment are due within nine months after death. A nonresident who kept a Brooklyn house files on the same test, because New York taxes real and tangible property located in the State regardless of where the owner lived.
The rates in Tax Law 952 run from 3.06 percent on the first $500,000 of a taxable estate to 16 percent on the amount over $10,100,000. What makes New York unusual is not the rates but the credit. Under Tax Law 952(c), an estate at or below the exclusion receives a credit equal to its tax, so it pays nothing. An estate that exceeds the exclusion by five percent or less receives a shrinking credit, computed by multiplying the exclusion by one minus a fraction whose numerator is the excess and whose denominator is five percent of the exclusion. An estate that exceeds the exclusion by more than five percent receives no credit at all, and the whole taxable estate is taxed from the first dollar, not merely the excess. For a 2026 death the five-percent line falls at $7,717,500. This is the “cliff” that gives New York estate planning its particular shape, and it has no federal counterpart. Nor does New York have a counterpart to the federal portability election: Tax Law 952 contains no provision allowing a surviving spouse to use the unused exclusion of the first spouse to die, so a married couple that wants to shelter two exclusions from New York tax must plan for it while both are alive.
| New York taxable estate | New York credit under Tax Law 952(c) | Result |
|---|---|---|
| $7,350,000 or less | Equal to the tax computed on the estate | No New York estate tax |
| More than $7,350,000 but not more than $7,717,500 | Reduced under the statutory formula as the estate rises toward 105 percent of the exclusion | Tax on an increasing share of the whole estate |
| More than $7,717,500 | None | The entire taxable estate is taxed under the Tax Law 952(b) schedule, from 3.06 percent to 16 percent |
| Any size | Federal comparison: exclusion $15,000,000 for 2026; portability of a deceased spouse’s unused exclusion available by election on Form 706 | Federal tax only above $15,000,000; a New York estate can owe state tax while owing no federal tax |
Few Brooklyn estates reach it. The federal basic exclusion for deaths in 2026 is $15,000,000, and the federal return, Form 706, is due nine months after death under Internal Revenue Code section 6075(a), with an automatic six-month extension available by filing Form 4768 on or before that date. Two points still matter below the threshold. A surviving spouse may inherit the first spouse’s unused federal exclusion only if the first spouse’s estate files Form 706 and elects portability, even when no federal tax is due; an estate that skips the return forfeits the election. And the federal and New York systems do not move together: an estate of $9,000,000 owes no federal tax and a substantial New York tax. Working through both systems in the same nine months is where Marcel A. Sager’s LL.M. in Taxation from New York University School of Law is put to direct use, and it is the reason we ask about lifetime gifts, out-of-state property and a prior spouse’s estate at the first meeting rather than at the deadline.
A will can be contested in the Kings County Surrogate’s Court only by a person whose share would be larger if the will failed, and only on recognized grounds: improper execution, lack of capacity, undue influence, fraud, or revocation. Before objecting, that person may examine the witnesses and the drafter under SCPA 1404. A surviving spouse left out of a will has a separate remedy, the right of election.
Standing is narrow by design. SCPA 1410 allows objections only from a person whose interest in property or in the estate “would be adversely affected by the admission of the will to probate.” In practice that means a distributee who would inherit more without the will, or a beneficiary under an earlier will who receives less under the later one. A disappointed friend has no standing, and a person named executor in an earlier will whose only stake is the lost commission needs the court’s permission to object. The filing fee for objections is $150 under the Kings County fee schedule, and either side may demand a jury under SCPA 502 for the same fee, although most contests are tried to the Surrogate.
Timing is strict. Objections are due on or before the return date of the citation or on a later date the court sets; if the objectant first conducts examinations under SCPA 1404, the objections are due within ten days after those examinations are completed, unless the parties stipulate or the court directs otherwise. The Appellate Division, Second Department, which hears appeals from Brooklyn, enforced that ten-day rule as recently as 2026 in Matter of Follman. Once objections are filed, SCPA 1411 requires a citation to the other interested parties, and the matter becomes a contested proceeding governed in Kings County by the Surrogates’ Joint Part Rules, with conferences, discovery and, where necessary, a trial. Even where no one objects, the court does not simply accept the paper: SCPA 1408 requires it to be satisfied of the will’s genuineness and due execution, and in Matter of Shabtai the Kings County Surrogate’s Court denied probate after trial for exactly that reason.
Before anyone commits to a contest, New York allows a look behind the will. Under SCPA 1404, any party to the proceeding, before or after filing objections, may examine under oath the attesting witnesses and the person who prepared the will, and, if the will contains a no-contest clause, the nominated executors and the proponents as well; on a showing of special circumstances the court may permit the examination of others whose testimony bears on the will’s validity. The examination may cover every matter that could be the basis of an objection, and it carries the document-discovery rights of CPLR Article 31. The Second Department has described the right of an adversely affected distributee or legatee to these examinations as unconditional, requiring no preliminary showing, in Matter of LaMotta. The estate, not the objectant, pays the cost of examining the first two attesting witnesses within the state when the examinations precede objections.
The scope is bounded by 22 NYCRR 207.27: absent special circumstances, the examinations are confined to the three years before the will’s date and the two years after it, or to the date of death if sooner, and the court may confine the scope further in a given case. That window frames the question a Brooklyn family usually has, which is what the decedent understood and who was in the room during the period when the will was made. Two further consequences follow. Once objections are filed, the court will no longer accept a witness’s SCPA 1406 affidavit in place of testimony; the witnesses must be examined. And under EPTL 3-3.5, discussed below, a 1404 examination does not trigger a no-contest clause, so a beneficiary can learn the facts without risking the gift. The examination therefore functions as the Surrogate’s Court’s pre-trial investigation, and in many estates it is where the dispute ends, either because the witnesses’ testimony makes an objection hopeless or because it makes a settlement sensible.
The grounds are few, and the burden of proof is divided between the sides. The proponent must prove that the will was executed as EPTL 3-2.1 requires and that the testator had testamentary capacity; the objectant must prove undue influence or fraud. Where an attorney drafted the will and supervised its signing, New York courts apply a presumption of regularity to the execution, a rule the Court of Appeals stated in Matter of Kindberg and the Second Department continues to apply. Capacity is measured at the moment of execution and asks only whether the testator understood the nature and consequences of making a will, the nature and extent of his or her property, and who the natural objects of his or her bounty were; the test, from Matter of Kumstar, is deliberately modest, and old age, illness or forgetfulness do not by themselves defeat it. Undue influence, under Matter of Walther, requires proof of motive, opportunity and the actual exercise of influence that overcame the testator’s free will, and because it is rarely admitted it is almost always proved circumstantially. Where a beneficiary who stood in a confidential relationship with the testator took part in preparing the will, the courts may draw an inference of undue influence that the beneficiary must explain. Fraud requires a knowingly false statement that caused the testator to make a will he or she would not otherwise have made. Revocation, governed by EPTL 3-4.1, asks whether the testator destroyed the will or replaced it with a later one; Part II explained the presumption that arises when an original last in the testator’s possession cannot be found.
| Ground | What must be shown | Who bears the burden | Principal authority |
|---|---|---|---|
| Lack of due execution | The signing did not satisfy EPTL 3-2.1: signature at the end, acknowledgment to each witness, declaration that the paper is the will, two witnesses attesting within thirty days | Proponent; presumption of regularity where the drafting attorney supervised execution | EPTL 3-2.1; Matter of Kindberg |
| Lack of testamentary capacity | At the moment of signing the testator did not understand the nature and consequences of making a will, the nature and extent of the property, or the natural objects of bounty | Proponent (initial burden), then objectant must raise a triable issue | Matter of Kumstar |
| Undue influence | Influence amounting to moral coercion that overcame the testator’s free will; motive, opportunity and actual exercise | Objectant; an inference may arise where a beneficiary in a confidential relationship took part in preparing the will | Matter of Walther |
| Fraud | A knowingly false statement that induced a will the testator would not otherwise have made | Objectant | Second Department decisions applying Walther |
| Revocation | The will was revoked by a later will or by a physical act of the testator | Objectant | EPTL 3-4.1; Part II on lost wills |
Yes, within limits. Under EPTL 3-3.5, a condition that cancels a beneficiary’s gift if the beneficiary contests the will is enforceable whether or not the contest had probable cause. The statute then carves out safe harbors. A contest asserting that the will is a forgery, or that it was revoked by a later will, does not breach the clause if it is brought with probable cause. The preliminary examinations under SCPA 1404 of the attesting witnesses, the drafter, the nominated executors and the proponents do not breach it. Nor do several other listed acts, such as objecting to the court’s jurisdiction or seeking a construction of the will’s terms. The practical calculus for a Brooklyn beneficiary is a comparison of two numbers: the gift the will provides, which is forfeited if an unsuccessful contest is filed, and the intestate share or earlier-will share that a successful contest would produce. The 1404 examination lets the beneficiary make that comparison with the facts in hand rather than in the dark, which is why the firm’s Surrogate’s Court litigation work on a contested will nearly always begins with the examinations rather than with objections. The clause works in the other direction as well: our discussion of writing a will that can stand up to probate challenges explains how a drafter uses it.
A New York spouse cannot be fully disinherited. Under EPTL 5-1.1-A, a surviving spouse may elect to take an elective share equal to the greater of $50,000 or one-third of the net estate, whatever the will says. The “net estate” against which the one-third is measured includes not only the probate estate but a list of testamentary substitutes: gifts made within one year of death, accounts held in trust for others, joint accounts and jointly held property to the extent the decedent contributed to them, property payable on death to a named person, and most retirement benefits, with certain plans counted at half their value. A decedent cannot defeat the share by moving assets out of the probate estate before death. The spouse’s own receipts are then subtracted: the net elective share is the elective share reduced by whatever passes to the spouse absolutely, whether by the will, by intestacy or by one of those substitutes, and each substitute contributes to the shortfall ratably.
The election is made by serving notice on the fiduciary and filing it with the court within six months after letters issue and in no event later than two years after death; the court may extend the time before it expires, for up to six months on any one application. A spouse may lose the right altogether under EPTL 5-1.2, which disqualifies a spouse against whom a final decree of divorce, annulment or separation was in effect at death, a spouse who procured an out-of-state divorce New York does not recognize, a spouse who abandoned the decedent and never returned, and a spouse who had the means to support the decedent and refused. The person asserting disqualification bears the burden of proving it. Because divorce and inheritance interact in both directions, our page on protecting an inheritance during divorce addresses the mirror-image question: what happens to an inheritance received while a marriage is ending.
The following example is illustrative only. The people and figures are fictional and do not describe a real case.
Lucille Baptiste of Flatbush dies in 2026, survived by her second husband, Georges, and by two adult children from her first marriage. Her will, signed years before she remarried, leaves everything to the children. The will cannot cut Georges out of his one-third; the only question is the arithmetic. Her probate estate, after debts, funeral and administration expenses, is $600,000. She also left a bank account held in trust for her daughter with $150,000 in it, and a joint checking account with Georges holding $100,000. Georges files a notice of election. Under EPTL 5-1.1-A the account in trust for the daughter is a testamentary substitute, and so is the joint account, but because Georges was the other party to it the decedent’s contribution is conclusively presumed to be one-half, or $50,000. The net estate is $600,000 plus $150,000 plus $50,000, or $800,000, and Georges’s elective share is one-third of that, $266,667. The $50,000 he already took by survivorship is subtracted, leaving a net elective share of about $216,667, which the probate estate and the daughter’s account must satisfy ratably. The children still receive the larger part of their mother’s estate, but not all of it. Had Lucille and Georges signed a written waiver of the right of election at the time of the marriage, the outcome would have been different; Part VII returns to that.
The typical contested Brooklyn estate is a house or a co-op that cannot be divided, so a will that leaves the home to one child and cash to another produces a dispute about value and timing even where no one doubts the will. The family pattern of one child nearby and others far away is the setting in which undue influence objections are most often raised, because the child who drove the parent to the lawyer’s office is both the obvious helper and the obvious suspect. And because SCPA 1404 gives every adversely affected relative an unconditional, estate-funded examination of the drafter and the witnesses, confined by 22 NYCRR 207.27 to the years around the will, and EPTL 3-3.5 makes that examination safe even under a no-contest clause, the examination is where most Brooklyn contests are actually decided. The will drafted in a lawyer’s office, with an attesting-witness affidavit and a clear record of who was present, survives that examination; the will signed at a kitchen table with the favored child in the room often does not.
Brooklyn estates raise questions that general probate guides pass over: how a co-op passes, whether a relative can keep a rent-stabilized apartment, what happens to a parent’s property-tax exemptions, how to protect an inherited house from deed theft, and how heirs abroad are reached. Each has a rule, and most of the rules reward planning done before death.
A cooperative apartment passes through the estate like a bank account, not like a house. As Part I explained, a co-op owner holds shares in the cooperative corporation and a proprietary lease, which New York courts treat as personal property. On death, the shares and lease pass to the executor or administrator with the rest of the personal property, and the estate becomes the shareholder. The maintenance continues to fall due each month, payable from estate funds or advanced by the family and reimbursed as an administration expense. The transfer that follows, whether to an heir who will live in the apartment or to a buyer, is not a deed recorded with the City Register; it is a transfer of shares and an assignment of the lease carried out through the corporation under its proprietary lease and bylaws, which ordinarily require the board’s consent. The fiduciary’s letters establish the right to sign for the estate, but the board decides who may become a shareholder. A married couple’s apartment is the exception: under EPTL 6-2.2(c), shares and a lease transferred to spouses on or after January 1, 1996 are held as tenants by the entirety unless the instrument says otherwise, and the surviving spouse takes without probate.
Yes, if the family member meets the Rent Stabilization Code’s residence test, and the will has nothing to do with it. Under 9 NYCRR 2523.5, as explained in the State Division of Housing and Community Renewal’s Fact Sheet 30, a family member who lived with the tenant in the apartment as a primary residence for the two years immediately before the tenant’s death is entitled to a renewal lease in his or her own name; the period is one year if the family member is 62 or older or disabled. The right belongs to the person who lived there, not to the estate, and it cannot be left to someone else by will. Because most Brooklyn households rent, this rule matters to many families more than anything in the Surrogate’s Court, and it turns on facts that must be documented: the family relationship, the move-in date, and proof of primary residence such as tax returns, voter registration and mail. The estate’s fiduciary has a narrower job: remove the decedent’s belongings, settle any arrears from estate funds, and return the keys or confirm the succession with the landlord.
Property-tax exemptions are personal to the owner, and the heir must qualify and apply in his or her own right. New York City’s guidance for the Senior Citizen Homeowners’ Exemption says so directly: a new owner cannot continue to receive the former owner’s benefits and must apply, if eligible. The State’s senior citizens exemption page adds one helpful detail about timing. The exemption normally requires twelve months of ownership, but that clock is not interrupted when title passes to a surviving spouse by will or operation of law, or when it passes within nine months of death to a person who was already living in the property as a primary residence, provided the property was receiving the exemption. The heir still has to qualify and file. For a Brooklyn family inheriting a parent’s house, the practical consequence is a jump in the property-tax bill after the transfer unless the heir qualifies for and files for his or her own exemptions. The fiduciary should check the Department of Finance account early, because the exemption’s removal, like the exemption itself, follows the owner.
Two protections exist, one administrative and one legal, and both are free. The Department of Finance’s Notice of Recorded Document program sends an email or letter, usually the day after recording, whenever a deed, mortgage or related document is recorded against a registered property; owners, their designees, their attorneys and, in the Department’s own words, executors and administrators of the estate of the owner may register, through the Department of Finance website or ACRIS. A vacant house in an estate is a target, and registering it should be among the fiduciary’s first acts. The legal protection is the 2023 deed-theft law, S.6577/A.6656, which the Governor signed in Brooklyn on November 14, 2023: the Attorney General and district attorneys investigating deed theft may move to stay any proceeding in which title or possession of the property is at issue, may move to void fraudulent instruments, and may file a notice of pendency once probable cause is found, so that buyers and lenders are warned. Suspected deed theft is reported to the Attorney General’s office at 800-771-7755.
RPAPL 993, the Uniform Partition of Heirs Property Act, protects heirs who inherit a house together. When a Brooklyn house passes to several heirs as tenants in common, as Part III explained happens by default under EPTL 6-2.2(f), any one of them may sue to partition it. Since 2019 the court must first determine whether the property is heirs property, which includes residential property held in common where a co-tenant acquired title from a relative and no written agreement governs partition. If it is, the court must hold a settlement conference, fix the property’s value by appraisal, offer the co-tenants who did not seek a sale the right to buy out the one who did, and, if a sale is still required, prefer an open-market sale over an auction. The statute exists because forced sales of inherited homes in neighborhoods like Brooklyn’s stripped families of value. A family that inherits a two-family house together should know that no sibling can force a courthouse-steps sale without the others first being offered the chance to buy.
Property follows the law of the place where it sits, and people follow the law of the place where they lived. A Brooklyn decedent who owned a condominium in Florida or a house in Trinidad leaves an estate that needs a proceeding in that place as well, and the New York letters do not substitute for it. The reverse case comes to Kings County regularly: a former Brooklynite who retired to another state but kept a house here. That estate is administered where the decedent was domiciled, and the fiduciary appointed there obtains ancillary letters in the Kings County Surrogate’s Court under SCPA Article 16, using the official ancillary probate forms, to deal with the Brooklyn property. As Part V noted, New York also taxes a nonresident’s real property located here.
Heirs abroad are handled by the service rules in Part II. A citation may be served outside the United States by personal delivery or by registered or certified mail under SCPA 307, with at least thirty days before the return date under SCPA 308, and where a non-domiciliary noncitizen’s interest is small, under $2,500, or the address is unknown, or the estate’s gross assets are under $25,000, SCPA 307(3)(e) permits service on a consular official of that person’s country. The court’s rules also require notification to foreign consuls in certain cases under 22 NYCRR 207.21. Documents from abroad proving a relationship must be translated, and, as Part IV explained, a relative who is neither a New York domiciliary nor a United States citizen may serve as fiduciary only with a New York co-fiduciary.
The tools are the title rules from Part I, used on purpose. Property held with a right of survivorship passes to the survivor; a beneficiary designation on a retirement account or life insurance policy passes under EPTL 13-3.2 to the person named; an account in trust for a named person passes under EPTL 7-5.1 to that person; and property placed in a revocable trust during life passes under the trust’s terms without letters. Each has a cost that this guide has already described. Joint title exposes the asset to the co-owner’s creditors and divorces during the owner’s life. Beneficiary designations and in-trust-for accounts still count toward a surviving spouse’s elective share under EPTL 5-1.1-A and toward New York estate tax. A revocable trust avoids probate but not estate tax, and it does nothing for assets that were never retitled into it. None of these devices replaces a will, which is still needed for whatever is left out, for naming a guardian for minor children, and for the executor’s authority over a lawsuit or a tax audit. The will itself should be signed in a lawyer’s office with the attesting witnesses’ affidavit attached, for the reasons Part II gave.
Two further documents belong in a Brooklyn plan. The first is a waiver of the right of election for a second marriage. Under EPTL 5-1.1-A(e)(2) it must be in writing, signed, and acknowledged in the manner required to record a deed; the Second Department upheld such a prenuptial waiver in a Kings County estate in Matter of Menahem, and the courts have held that a waiver lacking the acknowledgment is void regardless of what the parties intended. The second is the nomination of a New York co-executor wherever the first choice lives abroad, so that SCPA 707 does not defeat the plan at the filing counter.
New York’s will-signing rules are about to gain an alternative. The New York Electronic Wills Act, signed on December 12, 2025 and amended in 2026, adds a new Part 6 to Article 3 of the EPTL. It will permit a will to be signed electronically, with two witnesses signing in the testator’s physical or electronic presence, and it adds a step paper wills never had: the electronic will must be filed with the New York State Unified Court System within thirty days of its execution, and an electronic will that is not filed on time is deemed invalid. The Act takes effect on December 12, 2027. Until then, a will signed electronically or witnessed remotely is not valid in New York, and the paper will executed under EPTL 3-2.1 remains the only form the Kings County Surrogate’s Court will admit.
The three Census figures in the opening section, the $905,000 home, the 29.5 percent ownership rate and the 35.3 percent of residents born abroad, explain nearly every Brooklyn-specific rule in this guide, and they point to the same planning conclusion: decide how title to the house is held, name the beneficiaries on every account, and choose a fiduciary who can actually serve, while the owner is alive. Goldberg Sager & Associates has handled these matters in the Kings County Surrogate’s Court from our Brooklyn office on Kings Highway for families who speak English, Spanish, Russian and Polish. The pattern we see is consistent: the estates that close quickly are the ones in which title, beneficiaries and the choice of fiduciary were settled before death, and the ones that linger are the ones in which those decisions were left to the court.
How long does probate take in Brooklyn?
New York sets no deadline for finishing an estate. The clocks are statutory: creditors have seven months after letters issue under SCPA 1802, a New York estate tax return is due nine months after death, and the court asks for a written explanation if the estate is still open two years after letters under 22 NYCRR 207.42. Uncontested estates with cooperative heirs move fastest.
How much does it cost to probate a will in New York?
The Kings County Surrogate’s Court filing fee is set by SCPA 2402 and runs from $45 for an estate under $10,000 to $1,250 for an estate of $500,000 or more, plus $6 for each certificate of letters. Bond premiums, appraisals and legal fees are separate, and no statute fixes a lawyer’s fee; it must be reasonable.
Do I need a lawyer to probate a will in Brooklyn?
No. The Kings County Surrogate’s Court Help Center provides forms and guidance for people who file on their own. Estates that include real property, an heir who will not sign a waiver, a relative abroad, a possible will contest or an estate tax return usually benefit from counsel, because mistakes at those points cost more than the fee.
Does New York have a small estate affidavit?
New York calls it voluntary administration under SCPA Article 13. It is available when the decedent’s personal property is worth $50,000 or less, not counting property set off to the family under EPTL 5-3.1, and the decedent owned no real property alone. The filing fee is $1, and the court’s free online program prepares the affidavit.
Can a will be filed with the court without starting probate?
During life, a person may deposit a will with the Surrogate’s Court for safekeeping under SCPA 2507; the Kings County fee is $45. After death, the original will is filed with the probate petition, on paper even in an e-filed case. A person who holds a will and refuses to produce it can be compelled to do so under SCPA 1401.
Is a co-op inherited the same way as a house?
No. A cooperative apartment is personal property, shares in a corporation and a proprietary lease, so it passes to the executor or administrator with the rest of the personal property. The transfer to an heir or buyer then runs through the corporation, which ordinarily requires the board’s consent, while the estate continues to pay the monthly maintenance.
What happens if no one applies to be executor or administrator?
Under SCPA 1001(8), when no eligible distributee is appointed, letters issue to the Public Administrator of Kings County. Under SCPA 1402, if a probate petition is filed and not pursued, the court may direct the Public Administrator to prosecute it, and under SCPA 1001(9) it may grant letters of administration where a filed will is never offered for probate.
Does a surviving spouse automatically inherit everything in New York?
Not always. Without a will, a spouse who is also survived by children receives $50,000 plus one-half of the rest under EPTL 4-1.1, and the children share the balance. Under a will that leaves the spouse out, the spouse may elect the greater of $50,000 or one-third of the net estate under EPTL 5-1.1-A.
This guide describes how probate works in the Kings County Surrogate’s Court as of October 4, 2026. It is general information, not legal advice, and reading it does not create an attorney-client relationship; statutes, fees and court procedures change, and the right course in any estate depends on its facts. Please consult a licensed New York attorney about your situation. Goldberg Sager & Associates brings more than 70 years of combined legal experience to probate, estate administration and estate planning for families in Brooklyn and throughout New York City. Our office is at 1628 Kings Highway at East 17th Street, Brooklyn, New York 11229, and our team serves clients in English, Spanish, Russian and Polish. To discuss an estate, call 718-645-6677. Attorney Advertising. Prior results do not guarantee a similar outcome.
If you’ve lost a loved one and are facing the probate process, Goldberg Sager & Associates is here to help. Our Brooklyn probate attorneys offer free, no-obligation consultations to review the estate, explain your responsibilities, and outline your legal options. From filing the petition in Surrogate’s Court to notifying creditors and distributing assets, we handle the details so you can focus on your family. With more than 25 years of experience guiding executors, administrators, and beneficiaries in Brooklyn and throughout New York City, our team has the knowledge, patience, and determination to settle the estate properly and protect what your loved one left behind.
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