Probate is the court process that confirms a will is valid and appoints the executor who manages the estate. In New York it happens in the Surrogate’s Court in the county where the person lived at death. For a house, probate matters for one reason. Until the court issues papers called letters, no one can sign a deed for a house that belongs to the estate.
Not every house goes through probate. How the owner held title decides whether the house passes through the estate or goes straight to a survivor or beneficiary. This guide covers homes anywhere in New York State.
The probate court is the Surrogate’s Court
Each county has a Surrogate’s Court. New York City has five: New York County (Manhattan), Kings (Brooklyn), Queens, Bronx and Richmond (Staten Island). Westchester County has its own.
The case belongs in the county where the owner lived, not where the house is (state law on which court). Say a Brooklyn resident owned a house in Westchester. The estate is handled in Kings County, and the Kings County letters allow the sale of the Westchester house.
Some owners lived outside New York but owned New York real estate. Their estates may need a second, “ancillary” case in a New York Surrogate’s Court. The fee for that case is based only on property in New York (state court fee law).
Probate, administration and small estates
New York has three main paths. Which one applies depends on whether there is a will and what the estate holds.
| Path | When it applies | Who is appointed; court paper |
|---|---|---|
| Probate | The owner 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 asks the court to accept it. The owner’s closest relatives, who would inherit if there were no will, must be formally notified or sign waivers (state law on notice in probate). They are the people who could object. Once the court accepts 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 (state law on preliminary letters).
Administration. With no will, the court appoints an administrator. The order is the surviving spouse, then children, grandchildren, a parent, siblings, and other heirs (state law on who can serve). The estate goes to the heirs set by New York’s inheritance law. People often call this probate too, but the papers and process differ.
Small estate. An estate qualifies if the owner left personal property (things other than real estate) worth $50,000 or less in total (state small estate law). The limit rose from $30,000 to $50,000 for cases started on or after November 25, 2019 (2019 change to the law). The filing fee is $1, and no bond is required (state small estate fee law).
The small estate route does not cover real estate. The law says so directly (state law excluding real estate). Owning a house does not stop a family from using a small estate affidavit for a bank account. But a voluntary administrator cannot sign a deed. To sell a house in the estate, someone needs letters from a full probate or administration case. The other option is for every heir to sign, as described in the estate title guide.
Which homes go through probate
The last recorded deed shows how the house was owned. In Manhattan, Brooklyn, Queens and the Bronx it is on ACRIS, the city’s online property records (how to read ACRIS). On Staten Island it is at the Richmond County Clerk; in Westchester, at the Westchester County Clerk.
| How the house was owned | Goes through probate? | Who signs a later sale |
|---|---|---|
| Owner’s name alone | Yes | Executor or administrator |
| Tenants in common | Owner’s share only | Co-owners plus executor |
| 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 |
Joint owners. Some co-owners pass the house to the survivor at death. These are spouses who owned as tenants by the entirety, and anyone who owned as joint tenants with right of survivorship. The survivor sells with a death certificate, not letters. See removing a deceased spouse from a deed for what the title company asks for.
Trusts. If the house was deeded to a living trust before death, the trustee owns it and signs the deed. No letters are needed. The trust must have been signed properly under New York’s trust law, and the title company will read it to confirm the trustee’s authority. A trust controls only 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, New York owners can record a transfer on death (TOD) deed. It names who gets the house (state TOD deed law; Suffolk County Clerk). It works only if recorded before the owner dies. The beneficiary takes the house with any existing mortgages and liens. The estate can still claim it in a case brought within 18 months of death, if the rest of the estate cannot pay allowed debts. See transfer on death and quitclaim deeds.
Skipping probate does not mean skipping the estate tax lien, a legal claim the state holds on the owner’s property. The Tax Department requires a release (Form ET-117) for most transfers out of a deceased owner’s name. The exception is when the owner and 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 an estate’s house signed by the executor or administrator. Most do not need a court to approve the sale. New York law lets executors and administrators sell estate real estate, privately or at auction (state law on their powers). Once letters are issued, they sign the contract and deed like any seller, and the title company relies on the letters.
The court gets involved again when that power is missing or limited:
- The will holds back the power, or the letters restrict it. The court can issue letters that bar certain acts until it says otherwise (state law on restricted letters).
- The will leaves the house to a named person. The power to sell does not cover that house. That person signs or consents, or the court approves the sale.
- A preliminary executor is selling a house the will leaves to a named person. That person’s written consent or a court order is required.
In those cases, the executor or administrator asks the court to approve the sale. Reasons include paying expenses, funeral costs, debts or estate taxes, or dividing shares (state law on court-approved sales). That adds a court case to the timeline, so buyers and listing agents need to find out early whether one is needed.
If you are buying, check three things. Have letters been issued? Do they contain any restriction? Does the will leave the house to a named person? A contract signed before letters are issued should depend on them. The estate title guide lists the documents the title company requires. The inherited property guide covers what sellers need ready before listing.
How long does probate take?
No law sets a length for probate, and the Surrogate’s Courts do not publish standard processing times. The estate’s own facts control the timeline:
- Waivers or formal notice. If every close relative signs a waiver and consent, the court can act without notifying them formally. If anyone will not sign or cannot be found, formal notices (citations) must be served and a court date set.
- Witness proof. The will’s witnesses may have signed a sworn statement about the signing (a self-proving affidavit). If so, the court accepts it in place of their testimony. The witnesses must appear only if a relative or other person entitled to notice objects, or the court asks to hear from them (state law on witness affidavits).
- Proof of heirs. With no will, the court must be satisfied who all the heirs 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 waiting periods affect when the family receives money after letters are issued. Creditors who file claims within seven months of the first letters are protected against good-faith payouts made before then (state law on creditor claims). And an executor or administrator does not have to pay beneficiaries before seven months from letters (state law on payouts). Neither stops the sale of a house. They affect when the sale money goes to the family.
For a closing, the ET-117 estate tax release is a separate clock that starts once there is a contract. The Tax Department reports average processing of three to four weeks for a complete application, plus mailing time (Tax Department).
What the Surrogate’s Court charges
The filing fee for a probate or administration case is set by state law. It is based on the value of what passes under the will (probate) or to the heirs without a will (administration). A house that passes under the will counts. Property that passes outside the will, such as a house held by joint owners or in a trust, is not what the fee is based on.
| Estate value | 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 added fee is due; a lower value brings 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, notice costs and the costs of selling are separate.
Details for attorneys and title professionals
- Small estate limit. The $50,000 limit excludes property set aside for the family under the state’s family exemption rules. The 2019 change took effect immediately and applies to cases started on or after its effective date.
- Fee base and real estate. The fee law speaks of the gross estate “passing by will” or by intestacy and does not list asset types. A 2011 Nassau County Surrogate’s Court decision held that even out-of-state real estate passing under the will counts toward the fee, except in an ancillary case (decision).
- Small estate exclusion wording. The law says the small estate article “is not applicable to any interest in real property in this state owned by a decedent.”
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 Article 13; set-off under EPTL 5-3.1(a))
- 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 Article 19)
- 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 (power of sale at 11-1.1(b)(5)(B))
- EPTL 11-1.5, payment of dispositions
- Real Property Law § 424, transfer on death deeds (estate claims at § 424(14))
- Suffolk County Clerk, transfer on death deeds
- NYS Department of Taxation and Finance, release of lien of estate tax
- Matter of Piccolo, 2011 NY Slip Op 33236(U) (Sur Ct, Nassau County)
- NY Courts, Surrogate’s Court fees under SCPA Article 24
- Chapter 557 of the Laws of 2019 (small estate threshold)