New York Probate Information

New York probate turns on two questions the family should answer before opening a court file: which path fits, and whether the estate crosses the New York estate-tax threshold. The path depends on whether there is a will and on the size and makeup of the estate. Voluntary administration under the Surrogate's Court Procedure Act (SCPA 1301) is available only when the decedent left personal property with a gross value of $50,000 or less, exclusive of set-off property, and no real property in the decedent's sole name, so confirming whether there is solely owned real estate, and how each asset is titled, often decides the whole approach. A joint bank account, a jointly owned home, and a payable-on-death or beneficiary-designated account pass outside the estate and do not defeat small-estate eligibility on their own; only solely owned real property does.

The tax question is a New York distinctive. A New York estate tax return, Form ET-706, is required when the New York gross estate exceeds the basic exclusion amount, $7,350,000 for deaths in 2026, and it is due nine months after death. Because New York applies an all-or-nothing cliff once the New York taxable estate exceeds 105% of the exclusion, families with estates near that line should plan early. Before filing anything with the Surrogate's Court, identify every asset and debt and confirm how each asset is titled and valued. Sunset's asset-discovery work, searching more than 2,300 financial institutions, exists for this step.

New York probate runs through the Surrogate's Court, one court in each of the 62 counties. The Surrogate's Court is a constitutional court of limited jurisdiction that handles decedents' estates, trusts, guardianships of minors' property, and adoptions. There is no separate probate court, no probate division of a general-jurisdiction court, and no register of wills. The judge is the Surrogate, and the filing office is the Chief Clerk of the Surrogate's Court, the counter where petitions are filed and records are kept. The five New York City boroughs are each a county with its own Surrogate's Court: New York County (Manhattan), Kings County (Brooklyn), Bronx County, Queens County, and Richmond County (Staten Island). This knowledge base has a separate page for each of the 62 counties, because courthouse locations, hours, Chief Clerk contacts, and e-filing status differ from county to county even though the statewide law and fee schedule do not.

Venue is the county where the decedent was domiciled at death (SCPA 205). The Surrogate's Court of any county has jurisdiction over a New York domiciliary's estate, but the proper venue is the county of domicile, and a proceeding filed in the wrong county is transferred to the proper one. For a decedent who was not a New York domiciliary but left property in the state, venue lies in the county where the property is located (SCPA 206); this is the basis for ancillary probate when a will has already been admitted in the decedent's home state. New York's trial courts are grouped into 13 Judicial Districts as an administrative overlay, but probate is filed in the decedent's county Surrogate's Court, not in a district.

New York estate tax. New York imposes its own estate tax. A New York estate tax return, Form ET-706, is required when the New York gross estate exceeds the basic exclusion amount, $7,350,000 for deaths in 2026 (the 2025 figure was $7,160,000; the amount is indexed and rises most years), and the return is due nine months after death. Cite the date-of-death year, because the figure changes annually. Source: the New York State estate tax page at tax.ny.gov, verified July 2026.

The estate-tax cliff. New York does not simply tax the amount above the exclusion. If the New York taxable estate exceeds 105% of the basic exclusion amount, the exclusion is entirely lost and the whole estate is taxed from the first dollar. For 2026 deaths, 105% of $7,350,000 is $7,717,500, so an estate above that ceiling is taxed on its entire value. Estates between 100% and 105% of the exclusion lose the exclusion on a sliding basis. Families near that line should plan early.

Creditor claims. New York frames the creditor deadline around the issuance of letters, not the date of death. A fiduciary who pays out estate assets after seven months from the issuance of letters is protected from personal liability for a claim that was not presented within that window (SCPA 1802). This is a protection for the fiduciary, not an absolute bar: the claim is not extinguished, and a creditor may still pursue distributees who received estate property.

Spousal right of election. A surviving spouse may elect against the will and take the greater of $50,000 (or the whole net estate if it is less than $50,000) or one-third of the net estate (EPTL 5-1.1-A). The election reaches testamentary substitutes, certain non-probate transfers, so it can reshape a distribution that appears settled on the face of the will.

Family set-off property. Certain property passes to a surviving spouse, or if none to minor children, outside the estate and ahead of creditors and beneficiaries (EPTL 5-3.1): household furniture, appliances, and utensils up to an aggregate $20,000; books, pictures, computer software and records, and family videos and recordings up to $2,500; domestic animals, farm machinery, and one tractor up to an aggregate $20,000; one motor vehicle up to $25,000; and money or marketable securities up to $25,000, reduced by any excess value taken in the earlier categories. These items are excluded from the small-estate ceiling.

Terminology. The court is the Surrogate's Court, the judge is the Surrogate, and the filing office is the Chief Clerk of the Surrogate's Court. The estate representative is the executor (will), administrator (no will), or voluntary administrator (small estate), and the umbrella statutory term is fiduciary. Authority is proven by Letters Testamentary, Letters of Administration, or Letters of Voluntary Administration. New York uses letters testamentary and does not use personal representative as its statutory term.

No inheritance tax, and the federal exemption. New York taxes the estate, not the beneficiary, so there is no New York inheritance tax based on an heir's relationship to the decedent. The separate federal estate tax applies only above the federal exemption, which is $15 million per individual for deaths in 2026 under the One Big Beautiful Bill Act (signed July 4, 2025, and indexed annually).

A New York attorney is advisable when a proceeding is or may become contested, such as a will contest, a dispute among distributees, or a contested kinship proceeding; when the will is missing, defective, or hard to prove; when the New York gross estate exceeds $7,350,000 for a 2026 death and a Form ET-706 estate-tax return is required, especially near the 105% cliff; when real property must be sold; when a surviving spouse claims the right of election (EPTL 5-1.1-A); or when a nonresident decedent's New York property requires ancillary probate (SCPA Article 16). For an uncontested small estate that qualifies for voluntary administration, many New York families complete the Affidavit of Voluntary Administration without an attorney. Sunset can connect families to a vetted New York probate attorney when the situation requires counsel.

Find the accounts and assets. Sunset searches more than 2,300 financial institutions and New York public records to surface bank and credit-union accounts, retirement plans, brokerage holdings, life insurance, New York real estate, vehicles, business interests, and unclaimed property, and flags how each asset is titled so the family can tell during estate settlement what passes outside the estate, whether the estate fits the $50,000 voluntary-administration limit (SCPA 1301), and whether it crosses the $7,350,000 New York estate-tax threshold.

Generate the probate packet. Sunset assembles the packet for the estate settlement path that fits, whether the Affidavit of Voluntary Administration for a small estate, a Petition for Probate (Form P-1) for a will, or a Petition for Letters of Administration (Form A-1) where there is no will, ready to file with the Surrogate's Court at the Chief Clerk's counter or through NYSCEF where the county permits it.

Find a local probate attorney. When the situation calls for counsel, such as a contested proceeding, an estate over the $7,350,000 New York estate-tax threshold, or a real-estate sale, Sunset connects families to a vetted New York probate attorney serving the relevant county.

Sunset is free for families. Revenue comes from bank partners that pay Sunset while estate funds sit in an FDIC-insured estate account ($3M coverage).