To open a probate estate in New York, the person named as executor files the original will, a death certificate, and a probate petition with the Surrogate’s Court in the county where the decedent lived, then notifies the heirs and beneficiaries. Once the court is satisfied the will is valid, it admits the will to probate and issues letters testamentary, the document that gives the executor legal authority to act. The whole process is governed by the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL), and in Brooklyn it runs through the Kings County Surrogate’s Court.
I have walked a lot of Brooklyn families through this, and the questions are almost always the same: where do I file, what do I need, who has to be notified, and how long will this take. Below is the way I explain it across my desk, in plain terms, with the New York rules that actually control each step.
What “opening a probate estate” really means
Probate is the court proceeding that proves a will is genuine and appoints someone to carry it out. “Opening the estate” is just the front end of that process: the moment you file the petition and the court takes jurisdiction. It is distinct from administration, which is what happens when there is no will at all (the court then issues letters of administration to a qualified relative under SCPA Article 10 instead of letters testamentary).
A common point of confusion: not every estate needs full probate. New York offers a streamlined path called voluntary administration, sometimes called a small estate proceeding, under SCPA Article 13. If the decedent left personal property worth $50,000 or less (real estate is not counted toward that figure), a voluntary administrator can be appointed without a full proceeding. If you are unsure which track applies, it is worth reading about the different types of probate proceedings available in New York before you file anything, because choosing the wrong one wastes weeks.
Step 1: Confirm the right court and county
Probate is filed in Surrogate’s Court, and venue follows the decedent’s domicile—the place they truly considered home—not where they happened to die. A Brooklyn resident who passed away in a Manhattan hospital is still probated in Kings County. If the decedent owned New York property but lived out of state, an ancillary proceeding may be needed instead.
Getting venue right matters. File in the wrong county and the petition can be transferred or rejected, and you start the clock over.
Step 2: Locate and lodge the original will
The Surrogate’s Court wants the original will, ink signatures and all. A photocopy creates a presumption that the will was revoked, and overcoming that presumption is a fight you do not want. Search the decedent’s home, safe deposit box, and the files of any attorney who drafted estate documents.
While you are gathering papers, pull together the rest of the core package:
- The original will and any codicils
- A certified copy of the death certificate
- A list of the decedent’s distributees (the legal heirs who would inherit if there were no will) with their addresses
- A reasonable, good-faith estimate of the estate’s value—both probate and non-probate assets
- The names and addresses of every beneficiary named in the will
Step 3: Identify the distributees—this is where it gets technical
New York requires you to name and notify the decedent’s distributees even when they get nothing under the will. Why? Because they are the people who could challenge it. The rules of intestate succession in EPTL 4-1.1 tell you who the distributees are: spouse and children first, then more distant relatives in a defined order if there are no closer ones.
This is the step where amateur petitions fall apart. Miss a distributee—an estranged child, a child from an earlier relationship, the issue of a predeceased sibling—and the court will hold up the case until that person is found and served. In contested matters, especially estates that began as a guardianship under Article 81 of the Mental Hygiene Law before the person died, the family map can be tangled, and the prior guardianship file often becomes the roadmap for who must be cited.
Step 4: File the probate petition and supporting forms
The petition (form Probate-1) asks the court to admit the will and issue letters testamentary to the nominated executor. Along with it you will typically file the original will, the death certificate, and—depending on the situation—affidavits of the attesting witnesses, a notice of probate, and a filing fee that scales with the size of the estate.
If the will contains a self-proving affidavit (a notarized statement the witnesses signed when the will was executed), you usually will not need to track those witnesses down years later. If it does not, the court may require the witnesses to confirm the signing, which is one more reason original execution formalities under EPTL 3-2.1 matter so much. For the mechanics specific to New York City filings, a detailed overview of the NYC probate proceeding in New York is a useful companion to this guide.
Step 5: Serve citations and obtain jurisdiction
Every distributee who is not consenting in writing must be served with a citation—a formal command to appear in Surrogate’s Court on a return date if they wish to object. Beneficiaries who sign waivers and consents do not need to be cited. Once everyone has either consented or been properly served, the court has personal jurisdiction and can move forward.
If a distributee is a minor, incapacitated, or cannot be located, the court appoints a guardian ad litem to protect that person’s interest. This is also the stage where a will contest, if one is coming, usually surfaces.
Step 6: The court admits the will and issues letters testamentary
If no one objects and the paperwork is clean, the Surrogate signs a decree admitting the will to probate and issues letters testamentary. Those letters are the executor’s badge of authority—banks, brokerages, and title companies will ask for a recent certified copy before they release anything. Until you hold letters, you generally cannot lawfully collect estate assets, so this is the milestone everyone is waiting for.
From here the executor’s real work begins: marshaling assets, paying debts and taxes, and ultimately distributing what remains under the will’s terms.
The spousal right of election—do not overlook it
One New York rule trips up even people with valid wills. A surviving spouse cannot be fully disinherited. Under EPTL 5-1.1-A, the surviving spouse has a right of election to claim the greater of $50,000 or one-third of the net estate, regardless of what the will says. The election generally must be exercised within six months of letters being issued (and no later than two years after death). If you are the executor and there is a surviving spouse who was left little or nothing, plan for this from day one—it changes the math of every distribution.
How lifetime planning changes the probate picture
Plenty of assets skip probate entirely. Property in a revocable living trust passes under the trust instrument, not the will, and never enters the Surrogate’s Court file. The same goes for accounts with named beneficiaries, jointly held property with rights of survivorship, and life insurance. That is precisely why these tools are popular—they shrink the probate estate.
It is worth noting what does not survive death, because clients confuse these constantly. A New York statutory durable power of attorney under GOL 5-1501 and a health care proxy are lifetime documents only; both expire the instant the principal dies. After death, the only person with authority is the executor named in the will (once letters issue) or the administrator the court appoints. If you want to understand how a clean estate plan reduces the burden on your family, our overview of wills and estate documents walks through the building blocks, and you can compare that against our broader probate services page.
Estates that begin as contested guardianships
A theme I see constantly in Brooklyn: a parent loses capacity, an Article 81 guardianship is set up—often after a contested hearing among siblings—and then the parent dies while that guardianship is still active. The guardianship does not automatically convert into a probate estate. The guardian must account to the court, the guardianship closes, and a separate probate or administration proceeding opens. When the family already fought over the guardianship, that friction tends to follow the assets straight into Surrogate’s Court. Handling the transition cleanly, with the guardianship accounting reconciled before probate, prevents a second round of litigation.
How long does it take to open a New York probate estate?
If everyone consents and the will is self-proving, letters can issue in roughly four to eight weeks in a smoothly run county. Add citations that must be served, a missing distributee, a guardian ad litem, or any objection, and an uncontested-looking matter can stretch to many months. A full will contest can run a year or more. The single biggest accelerator is having a complete, accurate petition the first time.
Families with property or relatives in more than one state sometimes need parallel proceedings; our affiliated Florida office handles those Florida-side probate matters when a New York estate reaches across state lines. If you are ready to start, reach out to our Brooklyn office and bring the will and death certificate to the first meeting.
A short checklist before you file
- Confirm the decedent’s county of domicile and the correct Surrogate’s Court.
- Secure the original will and any codicils.
- Order several certified death certificates.
- Build the complete list of distributees under EPTL 4-1.1, including hard-to-find ones.
- Decide whether full probate, voluntary administration (SCPA Article 13), or administration applies.
- Account for the spousal right of election if a spouse survives.
- Gather waivers and consents wherever possible to avoid serving citations.
Probate in New York is procedural, not mysterious. Get the petition right, identify and notify the right people, and the court does the rest. The mistakes that cost families time and money are almost always upstream—a missing heir, a copy instead of an original, the wrong county—not the law itself.
Frequently Asked Questions
Where do I file to open a probate estate in New York?
You file in the Surrogate’s Court of the county where the decedent was domiciled—where they truly considered home—not where they died. For a Brooklyn resident, that is the Kings County Surrogate’s Court, regardless of where death occurred.
What documents do I need to start probate in New York?
At a minimum you need the original will and any codicils, a certified death certificate, a probate petition naming the proposed executor, a list of the decedent’s distributees with addresses, and a good-faith estimate of the estate’s value. A self-proving affidavit on the will avoids having to locate the witnesses later.
What is the difference between probate and administration in New York?
Probate applies when there is a valid will; the court admits the will and issues letters testamentary to the executor. Administration applies when there is no will; the court issues letters of administration to a qualified relative under SCPA Article 10. Small estates of $50,000 or less in personal property may instead use voluntary administration under SCPA Article 13.
Can a surviving spouse be disinherited in a New York will?
No. Under EPTL 5-1.1-A, a surviving spouse has a right of election to claim the greater of $50,000 or one-third of the net estate, no matter what the will says. The election generally must be made within six months of letters being issued and within two years of death.
How long does it take to get letters testamentary in New York?
When all distributees consent and the will is self-proving, letters can issue in about four to eight weeks. Citations that must be served, a missing heir, a guardian ad litem, or any objection can extend that to many months, and a full will contest can take a year or more.
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