What is probate? In New York, probate is the court proceeding that proves a will is valid and appoints the executor who will manage the estate. It happens in the Surrogate’s Court, New York’s probate court, in the county where the person lived at death. For real estate, probate matters for one reason: until the court issues letters, no one has authority to sign a deed for property that belongs to the estate.
Not every house goes through probate. How the owner held title decides whether the property passes through the estate or goes directly to a survivor or beneficiary. This guide explains how probate works for real property statewide, which property skips it, how a probate sale works, and what drives timing and cost. The detailed title requirements and seller checklist are in the linked guides.
Probate court in New York is the Surrogate’s Court
Each county has a Surrogate’s Court. In New York City that means five: New York County (Manhattan), Kings (Brooklyn), Queens, Bronx and Richmond (Staten Island). Westchester County has its own.
The proceeding belongs in the county of the decedent’s domicile (SCPA 205), not the county where the property sits. A Brooklyn resident who owned a house in Westchester is probated in Kings County, and the Kings County letters authorize the sale of the Westchester house. Where the decedent lived outside New York but owned New York real estate, the estate may need an ancillary proceeding in a New York Surrogate’s Court; the fee for ancillary probate is computed only on property in the state (SCPA 2402).
Probate vs. administration vs. small estate
New York has three main paths. Which one applies depends on whether there is a will and what the estate contains.
| Path | When it applies | Who is appointed | Court paper |
|---|---|---|---|
| Probate | Decedent left a will | Executor | Letters testamentary |
| Administration | No will | Administrator | Letters of administration |
| Small estate | Personal property $50,000 or less | Voluntary administrator | Small estate affidavit |
Probate. The executor named in the will petitions the court. The decedent’s distributees (the heirs who would inherit without a will) must be served or sign waivers (SCPA 1403), because they are the people who could object. Once the court admits the will, it issues letters testamentary. If probate will be delayed, the court can issue preliminary letters so the named executor can act in the meantime (SCPA 1412).
Administration. With no will, the court appoints an administrator, following the priority in SCPA 1001: surviving spouse, then children, grandchildren, a parent, siblings, and other distributees. The estate passes to the heirs set by the intestacy statute, EPTL 4-1.1. People often call this probate too, but the papers and process differ.
Small estate (voluntary administration). Under SCPA Article 13, an estate qualifies if the decedent left personal property with a gross value of $50,000 or less, not counting property set off to the family under EPTL 5-3.1(a). The threshold rose from $30,000 to $50,000 for proceedings started on or after November 25, 2019 (Chapter 557 of the Laws of 2019). The filing fee is $1 and no bond is required (SCPA 1304).
The small estate route does not reach real estate. SCPA 1302 says Article 13 “is not applicable to any interest in real property in this state owned by a decedent.” Owning a house does not stop the family from using a small estate affidavit for a bank account, but a voluntary administrator cannot sign a deed. To sell a house that is in the estate, someone needs letters from a full probate or administration proceeding, or every heir signs under the heirship approach described in the estate title guide.
Probate property vs. property that passes outside probate
The last recorded deed answers whether a house is probate property. In Manhattan, Brooklyn, Queens and the Bronx it is on ACRIS (how to read ACRIS); on Staten Island it is at the Richmond County Clerk; in Westchester, at the Westchester County Clerk.
| How title was held | Goes through probate? | Who signs a later sale |
|---|---|---|
| Owner’s name alone | Yes | Executor or administrator |
| Tenants in common | Decedent’s share only | Co-owners plus fiduciary |
| Tenants by the entirety | No | Surviving spouse |
| Joint tenants with survivorship | No | Surviving joint tenant |
| Revocable or living trust | No | Trustee |
| Transfer on death deed | No | Named beneficiary |
Survivorship. Property held by spouses as tenants by the entirety, or by anyone as joint tenants with right of survivorship, belongs to the survivor at death. The survivor sells with a death certificate, not letters. See removing a deceased spouse from a deed for what title asks for.
Trusts. A house deeded to a lifetime trust before death is owned by the trustee, so the trustee signs the deed and no letters are needed. The trust must be properly executed under EPTL 7-1.17, and title will review the trust instrument to confirm the trustee’s authority. A trust only controls property actually deeded into it; a house still in the owner’s own name goes through probate even if a trust exists.
Transfer on death deeds. Since July 19, 2024, a New York owner can record a transfer on death (TOD) deed naming a beneficiary (RPL § 424; Suffolk County Clerk). It must be recorded before the owner’s death to work. The beneficiary takes the property subject to existing mortgages and liens, and the estate can still reach it in a proceeding brought within 18 months of death if the probate estate cannot pay allowed claims (§ 424(14)). See transfer on death and quitclaim deeds.
Passing outside probate does not mean passing outside the estate tax lien. The Tax Department requires a release of estate tax lien (Form ET-117) for most transfers out of a decedent’s name, with an exception where the decedent and the surviving spouse were the only joint tenants (Tax Department). The estate title guide explains when it applies.
How a probate sale works
A probate sale is a sale of estate property signed by the executor or administrator. Most do not need court approval of the sale itself. New York gives executors and administrators a statutory power to sell estate real property at public or private sale (EPTL 11-1.1(b)(5)(B)), so once letters issue, the fiduciary signs the contract and deed like any seller, and the title company relies on the letters.
Court involvement comes back in when that power is missing or limited:
- The will withholds the power, or the letters restrict it. The court can issue letters that bar specified acts until further order (SCPA 702).
- The will leaves the house to a named person. The statutory power does not cover specifically devised property. The devisee signs or consents, or the court authorizes the sale.
- A preliminary executor is selling a specifically devised house. SCPA 1412 requires the devisee’s written consent or a court order.
In those cases, the fiduciary petitions under SCPA Article 19. The court can authorize a sale to pay administration and funeral expenses, the decedent’s debts, estate taxes, or to distribute shares, among other purposes (SCPA 1902). That adds a court proceeding to the timeline, so buyers and listing agents should find out early whether one is needed.
For a buyer, the practical checks are whether letters have issued, whether they contain any restriction, and whether the house is specifically devised. A contract signed before letters issue should be conditioned on them. The estate title guide lists every document title will require, and the inherited property guide covers what sellers should have ready before listing.
How long does probate take in New York?
No statute sets a length for probate, and the Surrogate’s Courts do not publish standard processing times. What controls the timeline is the estate’s own facts:
- Waivers vs. citations. If every distributee signs a waiver and consent, the court can act on the petition without serving them. If any distributee will not sign or cannot be found, citations must be served and a return date set.
- Witness proof. A will with a self-proving affidavit from the attesting witnesses avoids separate witness testimony (SCPA 1406).
- Proof of heirs. In administration, the court must be satisfied who all the distributees are. Unknown or missing relatives slow this down.
- Objections. A will contest can hold up full letters for a long time; preliminary letters are the usual workaround.
- Court workload. Volume differs by county.
Two statutory periods affect how quickly estate property is distributed after letters issue. Creditors who present claims within seven months of the first letters are protected against good faith distributions made before then (SCPA 1802), and a fiduciary is not required to pay beneficiaries before seven months from letters (EPTL 11-1.5). Neither period stops a fiduciary from selling a house. They affect when sale proceeds go to the family.
For a closing, the ET-117 estate tax release is a separate clock that runs after there is a contract. The Tax Department reports average processing of three to four weeks for a complete application, plus mailing time (Tax Department).
Surrogate’s Court fees
The filing fee for a probate or administration petition is set by SCPA 2402 and is based on the gross estate stated in the petition: the property passing under the will (probate) or by intestacy (administration). The statute does not list asset types, but a house that passes under the will is part of that estate; the Nassau County Surrogate’s Court has held that even out-of-state real property passing under the will counts, except in an ancillary proceeding (Matter of Piccolo, 2011 NY Slip Op 33236(U)). Property that passes outside the will or intestacy, such as survivorship or trust property, does not pass “by will” and is not what the fee is computed on.
| Gross estate | Filing fee |
|---|---|
| Under $10,000 | $45 |
| $10,000 to under $20,000 | $75 |
| $20,000 to under $50,000 | $215 |
| $50,000 to under $100,000 | $280 |
| $100,000 to under $250,000 | $420 |
| $250,000 to under $500,000 | $625 |
| $500,000 and over | $1,250 |
If a later estate tax return shows a higher value, an additional fee is due; a lower value produces a refund. A certificate of letters, which title companies want issued close to closing, costs $6 each. A small estate affidavit costs $1. These are court fees only. Attorney fees, executor commissions, appraisals, publication or service costs and the costs of the sale itself are separate.
Official sources
- SCPA 205, venue
- SCPA 702, limited and restricted letters
- SCPA 1001, order of priority for letters of administration
- SCPA 1301, 1302 and 1304, small estates
- SCPA 1403, process in probate
- SCPA 1406, affidavits of attesting witnesses
- SCPA 1412, preliminary letters testamentary
- SCPA 1802, effect of failure to present claim
- SCPA 1902, purposes for disposition of real property
- SCPA 2402, Surrogate’s Court fees
- EPTL 4-1.1, distribution without a will
- EPTL 7-1.17, lifetime trusts
- EPTL 11-1.1, fiduciary powers
- EPTL 11-1.5, payment of dispositions
- Real Property Law § 424, transfer on death deeds
- NYS Department of Taxation and Finance, release of lien of estate tax
- NY Courts, Surrogate’s Court fees under SCPA Article 24
- Chapter 557 of the Laws of 2019 (small estate threshold)