Wills and Probate Attorneys in New York
A will is the simplest way to say who inherits your property, who settles your affairs, and who raises your children if you cannot. In New York, a will only works if it is signed the way the Estates, Powers and Trusts Law requires, and after death it only takes effect once the Surrogate’s Court admits it to probate. Milvidskiy Law Group P.C. drafts wills for New York residents and represents families when a will, or the absence of one, has to go through the Surrogate’s Court.
This page explains how a New York will is made, what probate is, what happens when someone dies without a will, and where the process usually gets complicated. We handle New York wills and probate matters from our Tarrytown office in Westchester County and by video and phone. We help New York clients coordinate an estate plan with property and family interests in other states. When another state’s law or local work is involved, we identify the additional legal assistance needed.
Key Takeaways:
- A New York will must be signed at the end by the person making it, declared to be a will, and signed by at least two witnesses within a thirty-day period.
- Probate takes place in the Surrogate’s Court of the county where the person lived at death, and every legal heir must be given notice or sign a waiver.
- Without a will, New York law decides who inherits. Under current law, a surviving spouse with children receives the first $50,000 plus half of the rest, and the children share the balance.
What a New York Will Does
A will names an executor to settle your estate, directs who receives property that is in your name alone at death, and can nominate a guardian for minor children. It can also create a trust that takes effect at death, for example to hold a child’s inheritance until a certain age or to protect a beneficiary who receives government benefits.
A will does not control everything you own. Life insurance, retirement accounts, and bank or brokerage accounts with a named beneficiary pass under that designation. Jointly owned property with a right of survivorship passes to the surviving owner. Assets held in a properly funded living trust generally pass under the trust. A good will is drafted with those other transfers in mind so that the whole plan fits together. If avoiding probate is a priority, we may recommend pairing the will with a living trust.
How a Will Is Validly Signed in New York
New York’s rules for signing a will are in the Estates, Powers and Trusts Law. In plain terms:
- You must sign at the end of the document, or direct someone to sign for you in your presence.
- You must declare to each witness that the document is your will.
- At least two witnesses must sign, and they must do so within a single thirty-day period.
- You must be at least eighteen and of sound mind.
Our team coordinates the signing with the required witnesses and a notary for the self-proving affidavit. The affidavit records the witnesses’ statements about the signing and can simplify probate. Before your meeting, we explain who must attend and what identification to bring.
What Probate Is and Where It Happens
Probate is the Surrogate’s Court proceeding that confirms a will is genuine and valid, and that gives the named executor legal authority, called letters testamentary, to collect assets and carry out the will. Every county in New York has a Surrogate’s Court. The petition is filed in the county where the person was domiciled, meaning their permanent home, at the time of death, not where they died and not where the property is located.
The executor, through counsel, files the original will, a certified death certificate, a probate petition listing the estate’s approximate value and every legal heir, and supporting affidavits. New York calls the legal heirs distributees. They are the people who would inherit if there were no will, and each one is entitled to notice of the probate even if the will leaves them nothing.
Waivers, Citations, and Why Heirs Matter
Each distributee can either sign a waiver and consent, which tells the court they have seen the will and do not object, or be served with a citation, which is a court document setting a date by which they must appear or object. Under the Surrogate’s Court Procedure Act, a signed and acknowledged waiver counts as an appearance in the proceeding. When every distributee signs a waiver, an uncontested probate is generally simpler, though timing depends on the court and the facts. When a distributee cannot be found, is a minor, or refuses to sign, the court issues a citation and may appoint a guardian ad litem, and the timeline lengthens.
Identifying the distributees correctly is one of the most important parts of a New York probate. Missing an heir, or misclassifying a stepchild, an adopted child, or a child born outside marriage, can invalidate the proceeding. We prepare a family tree affidavit when the relationships are not straightforward.
When a Will Is Contested
Before objections are even filed, New York law lets an interested party examine the attesting witnesses and the attorney who drafted the will under oath. These pretrial examinations often decide whether a contest goes forward. Common grounds for objection are lack of capacity, undue influence, fraud, and improper execution. Our attorneys handle estate contests, whether we are defending a will we drafted or challenging one on behalf of a family member who was cut out.
Dying Without a Will in New York
If there is no valid will, the estate is settled through an administration proceeding rather than probate, and New York’s intestacy statute decides who inherits. Under the Estates, Powers and Trusts Law, the order is:
- Spouse and children: the spouse receives $50,000 plus one half of the remainder; the children share the other half.
- Spouse and no children: the spouse receives everything.
- Children and no spouse: the children receive everything, with a deceased child’s share passing to that child’s children.
- No spouse or children: parents, then siblings and their descendants, then more distant relatives.
Intestacy does not recognize unmarried partners, stepchildren who were never adopted, or close friends, and it gives a spouse no ability to provide for a child with special needs through a trust. It also leaves the choice of who administers the estate to a statutory priority list rather than your own judgment. Those gaps are the main reason to sign a will.
Small Estates
New York offers a simplified procedure, called voluntary administration, when a person dies leaving personal property worth $50,000 or less, not counting certain property set aside for a surviving spouse or minor children. Real estate cannot pass through this procedure. It is a simpler procedure than a full probate and is often used for an estate that consists of a modest bank account and a car.
Taxes After Death in New York
New York does not impose a separate inheritance tax on beneficiaries. Federal or New York estate tax may apply to the estate, and beneficiaries may owe income tax on certain inherited assets, including distributions from traditional retirement accounts. For deaths in 2026, a New York estate tax return is required when the estate exceeds the basic exclusion amount of $7,350,000, and the return and any tax are due nine months after death. Estates near that figure need careful valuation, because New York’s exclusion phases out quickly once it is exceeded. Larger estates may also owe federal estate tax. Our attorneys review both as part of tax planning.
The Executor’s Job
Once the court issues letters, the executor collects the assets, pays debts and expenses, files tax returns, and distributes what remains. New York law entitles an executor to a statutory commission based on the value of the estate, unless the will says otherwise. Executors who live out of state or who simply do not want the responsibility can decline, and the will’s alternate can serve. For families with no suitable candidate, the firm offers executor services. A fuller discussion of the administration process is on our Probate and Estate Administration in New York page.
Out-of-State Wills and New York Property
A will validly signed in another state is generally recognized in New York, though we recommend that anyone who moves here review the document with a New York attorney. When a person who lived elsewhere dies owning New York real estate, the out-of-state executor usually needs a separate New York proceeding, called ancillary probate, to transfer the property.
Talk to a New York Wills and Probate Attorney
Whether you need a will drafted to meet New York’s execution requirements or you have just been named executor and are not sure what comes next, we can help. We serve clients throughout New York State from our Tarrytown office in Westchester County, and by video conference and phone. Contact us to schedule a consultation.
This page is provided for general informational purposes only and does not constitute legal advice. Laws change and figures are adjusted periodically. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
Does a New York will need to be notarized?
No. New York requires the person making the will to sign at the end, declare the document to be their will, and have at least two witnesses sign within a thirty-day period. Notarization is not part of the signing requirement. It is standard practice to have the witnesses sign a sworn affidavit before a notary at the same time, which generally makes the will easier to probate later.
Is a handwritten will valid in New York?
A handwritten will that is signed and witnessed the same way as a typed will is valid. An unwitnessed handwritten will is generally not valid in New York except in narrow circumstances involving members of the armed forces during conflict and mariners at sea. If a relative left an unwitnessed handwritten document, speak with an attorney before assuming it controls.
Who can be a witness to a New York will?
Any competent adult can serve as a witness. A beneficiary can technically witness the will, but doing so can cost that person their gift unless there are two other disinterested witnesses, so as a matter of practice we do not use beneficiaries or their spouses as witnesses. Our office provides the witnesses for wills signed with us.
Which court handles probate in New York?
Probate is handled by the Surrogate’s Court of the county where the deceased person was domiciled at death. Each of New York’s sixty-two counties has one. A person who spent winters in Florida but kept a New York home, driver’s license, and voter registration is generally still a New York domiciliary, though domicile disputes do arise.
How long does probate take in New York?
Timing depends on the court and the facts, and we will give you a realistic estimate for your matter. An uncontested probate in which every heir signs a waiver generally moves more quickly than one in which heirs must be served with a citation, because a citation requires a return date and extends the timeline. Administering and closing the estate after letters issue usually takes longer than obtaining the letters, in part because creditors have seven months from the issuance of letters to present claims.
What is a distributee?
A distributee is a person who would inherit under New York’s intestacy law if there were no will, such as a spouse, children, or, if none, parents or siblings. Every distributee must receive notice of a probate proceeding, even one who is left nothing under the will. Correctly identifying distributees is essential, and the court may require a family tree affidavit when relationships are not obvious.
What does a surviving spouse inherit if there is no will in New York?
If the deceased left a spouse and children, the spouse receives the first $50,000 of the estate plus one half of the balance, and the children share the remainder. If there are no children, the spouse receives the entire estate. These shares apply only to property passing through the estate, not to joint accounts, life insurance, or retirement accounts with a named beneficiary.
Can I disinherit my spouse or a child in a New York will?
You can disinherit an adult child in New York; there is no requirement to leave children anything. A spouse is different. New York gives a surviving spouse a right of election, which allows the spouse to claim a statutory share of the estate regardless of what the will says, unless that right was waived in a prenuptial or postnuptial agreement. An attorney should be involved whenever a plan leaves a spouse less than the elective share.
Does New York have an inheritance tax?
New York does not impose a separate inheritance tax on beneficiaries. Federal or New York estate tax may apply to the estate, and beneficiaries may owe income tax on certain inherited assets, including distributions from traditional retirement accounts.
Can I use a small estate procedure instead of probate?
Yes, if the deceased left personal property worth $50,000 or less, not counting certain property set aside for a spouse or minor children, and no real estate needs to pass through the estate. This procedure is called voluntary administration. It involves a short affidavit rather than a full petition and is handled by the Surrogate’s Court in the county of domicile.
