Probate and Estate Administration Attorneys in New York
Settling an estate in New York means getting authority from the Surrogate’s Court, gathering everything the person owned, paying what the estate owes, filing the right tax returns, and distributing the rest with proof that you did it correctly. That job falls on the executor named in the will or, when there is no will, on the administrator the court appoints. Milvidskiy Law Group P.C. represents executors, administrators, and beneficiaries in New York estates, from the first filing through the final accounting.
The steps below follow the order in which a New York fiduciary actually encounters them. Our attorneys practice in New York, New Jersey, and Connecticut. We handle New York estates from our Tarrytown office in Westchester County and by video and phone.
Key Takeaways:
- A will is probated and produces letters testamentary; an estate with no will goes through an administration proceeding and produces letters of administration. Both are filed in the Surrogate’s Court of the county where the person lived.
- Creditors have seven months from the date letters are issued to present claims, and a fiduciary who distributes before then does so at some risk.
- New York’s estate tax return is due nine months after death for estates over the basic exclusion amount, which is $7,350,000 for deaths in 2026.
Probate Proceeding or Administration Proceeding
The first question is whether there is a valid will. If so, the nominated executor files a probate proceeding. If the court is satisfied that the will was properly signed and that every legal heir has been notified or has waived notice, it admits the will and issues letters testamentary to the executor.
If there is no will, or the will fails, a distributee files an administration proceeding. The Surrogate’s Court Procedure Act sets the order of priority for who may serve: the surviving spouse first, then children, grandchildren, parents, siblings, and then other relatives. Someone lower on the list, or a person who is not a relative at all, can serve if every eligible distributee consents in writing. The court issues letters of administration, and the estate passes under New York’s intestacy law.
Both proceedings are filed in the Surrogate’s Court of the county where the deceased was domiciled at death. When an estate needs immediate attention before full letters can issue, for example to secure a house or continue a business, the court can grant preliminary or temporary letters with limited powers.
Small Estates: Voluntary Administration
Under current law, when a New York resident dies leaving personal property worth $50,000 or less, not counting certain property that is set aside by law for a surviving spouse or minor children, the estate can often be settled through voluntary administration. The voluntary administrator files a short affidavit instead of a full petition and receives a certificate for each asset rather than letters. This procedure cannot be used to transfer real estate. Because the threshold is measured by the gross value of personal property, an estate with a $60,000 account and $40,000 in debts does not qualify.
Marshaling the Assets
With letters in hand, the fiduciary obtains a tax identification number for the estate, opens an estate bank account, and begins collecting assets. That typically means closing the deceased’s individual bank and brokerage accounts into the estate account, retitling or preparing to sell real estate, collecting refunds and final paychecks, and locating safe deposit contents. Assets with a named beneficiary, joint accounts with survivorship, and trust assets pass outside the estate and are not marshaled, but their values may still count for estate tax purposes.
New York fiduciaries owe the beneficiaries a duty of prudence and loyalty. Investments should be reviewed rather than left on autopilot, real estate should be insured and maintained, and estate funds must never be mixed with personal funds. Detailed records from day one make the final accounting far easier.
Creditor Claims and the Seven-Month Rule
Creditors present their claims to the fiduciary, who may allow or reject them. Under the Surrogate’s Court Procedure Act, a fiduciary who waits seven months from the date letters were first issued before distributing is not personally liable to creditors who present claims after that. A fiduciary who distributes earlier remains exposed if a late claim surfaces and the estate has been emptied. In practice, many New York estates wait out the seven months, pay valid debts, funeral expenses, and administration expenses, and then distribute.
New York also has a claim against the estate for Medicaid benefits paid during the deceased’s lifetime in certain circumstances. If the deceased received Medicaid, the fiduciary should expect a recovery notice and should not distribute until it is resolved. Our attorneys handle those claims as part of our Medicaid planning practice.
Tax Filings
An executor or administrator is responsible for several returns:
- The deceased’s final personal income tax returns, federal and New York, for the year of death.
- Fiduciary income tax returns for the estate itself, if the estate earns income above the filing threshold while it is open.
- A New York estate tax return when the estate exceeds the basic exclusion amount. For deaths in 2026, that amount is $7,350,000. The return and any tax are due nine months after death, and extensions of time to file are available.
- A federal estate tax return when the estate exceeds the federal exemption, which is considerably higher.
New York has no inheritance tax. New York’s estate tax exclusion does not work like the federal one: once an estate exceeds the exclusion by a small margin, the benefit phases out entirely, so estates near the line require precise valuation and sometimes post-death planning such as charitable gifts or disclaimers. Our attorneys coordinate these returns as part of tax planning.
Fiduciary Commissions
New York executors and administrators are entitled to a statutory commission unless the will provides otherwise. Under the Surrogate’s Court Procedure Act, the rates are 5 percent on the first $100,000, 4 percent on the next $200,000, 3 percent on the next $700,000, 2.5 percent on the next $4,000,000, and 2 percent above $5,000,000. The commission is computed half for receiving assets and half for paying them out, and property that passes outside the estate or directly to a specific beneficiary is generally excluded from the base. Commissions are taxable income to the fiduciary, so a family member who is also the sole beneficiary often waives them.
Accounting and Distribution
Before the estate closes, the fiduciary accounts to the beneficiaries. Many New York estates use an informal accounting: the fiduciary prepares a statement of everything received, paid, and proposed for distribution, and each beneficiary signs a receipt, release, and refunding agreement. When a beneficiary will not sign, is a minor, or disputes the numbers, the fiduciary files a judicial accounting with the Surrogate’s Court and the court settles the account after notice to all interested parties. A judicial accounting gives the fiduciary a court decree that closes the matter.
Distribution follows the will or the intestacy statute. Specific gifts are paid first, then the residue. Shares passing to minors or to beneficiaries with disabilities may need to be held in trust or paid to a guardian, and shares for beneficiaries who cannot be located may be deposited with the county.
Real Estate, Businesses, and Out-of-State Property
Real estate is often the largest asset and the slowest to resolve. The fiduciary decides whether to sell, and if so signs an executor’s or administrator’s deed that is recorded in the county where the property sits. A closely held business needs a plan for continuity or sale, and buy-sell agreements should be reviewed immediately. Property located outside New York generally requires a separate proceeding in that state. Conversely, when a non-New Yorker dies owning New York real estate, the out-of-state fiduciary needs ancillary probate in New York.
Disputes During Administration
Disagreements over who should serve, whether a fiduciary is doing the job properly, how assets are valued, or whether a claim is valid are heard in the Surrogate’s Court. Beneficiaries can compel a fiduciary to account, and a fiduciary who breaches duties can be surcharged or removed. Our attorneys handle these estate and trust litigation matters on both sides.
When There Is No One to Serve
Some estates have no willing or suitable family member to act. The firm’s executor services allow an attorney to be named in a will or appointed by the court to administer the estate. Where the will creates a continuing trust, administration transitions into trust administration once the estate closes.
Speak with a New York Probate and Estate Administration Attorney
If you have been named executor, expect to be appointed administrator, or are a beneficiary waiting for an estate to close, we can explain where things stand and what should happen next. 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
What is the difference between letters testamentary and letters of administration?
Letters testamentary are issued to the executor named in a will after the Surrogate’s Court admits the will to probate. Letters of administration are issued to an administrator when there is no will, and New York law sets the order of priority for who may serve, starting with the surviving spouse and then children. Both documents give the fiduciary authority to deal with banks, brokerages, and buyers.
Who has priority to be appointed administrator in New York when there is no will?
The Surrogate’s Court Procedure Act lists the surviving spouse first, then children, grandchildren, parents, siblings, and then other relatives who would inherit. If several people have equal priority, the court may appoint one or more of them. A person lower on the list, or someone who is not a relative, may be appointed if all eligible distributees sign consents.
How long must a New York executor wait before distributing?
New York law protects a fiduciary from late creditor claims once seven months have passed from the date letters were first issued. Distributing before then is permitted but leaves the fiduciary personally exposed if an unexpected claim appears. Many fiduciaries make partial distributions after seven months and hold a reserve for taxes and final expenses.
How much is an executor paid in New York?
Unless the will says otherwise, New York executors and administrators earn a statutory commission: 5 percent of the first $100,000, 4 percent of the next $200,000, 3 percent of the next $700,000, 2.5 percent of the next $4,000,000, and 2 percent above $5,000,000. The commission is split between receiving and paying out, and assets that pass outside the estate are generally excluded. Commissions are taxable income, so family members who are also beneficiaries sometimes waive them.
When is a New York estate tax return required?
A New York estate tax return must be filed when the estate exceeds the basic exclusion amount for the year of death. For deaths in 2026, that amount is $7,350,000. The return and payment are due nine months after death, though an extension of time to file can be requested. The federal exemption is higher, so some estates file a New York return but no federal return.
What is voluntary administration?
Voluntary administration is New York’s small estate procedure, available when the deceased left personal property worth $50,000 or less, not counting certain property set aside for a surviving spouse or minor children. It uses a short affidavit rather than a full petition, and the voluntary administrator receives certificates to collect each asset. It cannot be used to transfer real estate.
Do I need a judicial accounting to close a New York estate?
Not usually. Many estates close informally, with the fiduciary providing a full accounting to the beneficiaries and each beneficiary signing a receipt, release, and refunding agreement. A judicial accounting filed with the Surrogate’s Court is needed when a beneficiary refuses to sign, is a minor or under a disability, or disputes the account. The court’s decree then protects the fiduciary.
Can an executor sell the house before probate is complete?
An executor cannot sign a deed until the court issues letters, and a contract signed before then is at best conditional. Once letters testamentary issue, many New York wills give the executor the power to sell without a further court order. An administrator’s power to sell real estate depends on the letters issued and may require court approval. Buyers’ title companies will review the letters and the will closely.
What happens if the executor lives outside New York?
A non-resident can serve as executor of a New York estate, though the court may require a bond unless the will waives it, and a non-resident who is not a United States citizen generally cannot serve alone. Much of the work can be done remotely through counsel, and documents can be signed before a notary in the executor’s home state.
What if the deceased owned property in another state or lived elsewhere but owned New York property?
Property in another state usually requires a separate proceeding there, often called ancillary administration. In the reverse situation, when a resident of another state dies owning New York real estate, the out-of-state fiduciary petitions for ancillary letters in the New York Surrogate’s Court so the property can be sold or transferred.
