Probate in New York: small estates, no will, and skipping court
The short answer
In New York, an estate with $50,000 or less in personal property can use voluntary administration, a simpler small estate process with no court order or bond. Larger estates go through Surrogate's Court. Without a will, state law decides who inherits, starting with a spouse and children.
When someone dies in New York, their family usually has two questions. Who gets what? And how much court will this take?
This page answers both in plain terms. It is one of our estate planning guides for six large states. If the word itself is new, start with what probate is, then come back.
What counts as a small estate in New York?
New York calls its small estate process "voluntary administration." It applies when the person left personal property with a gross value of $50,000 or less. Property set aside for the family under a separate rule doesn't count toward that limit (SCPA 1301).
The process is simpler than full probate. The voluntary administrator files an affidavit on the official form with the Surrogate's Court clerk, along with a certified death certificate. No court order or bond is needed (SCPA 1303).
Who can act as voluntary administrator?
If there is a will, the named executor has the first right to act. If that person doesn't file within 30 days after the will is filed, others may.
Without a will, the order is the adult spouse, then the first competent adult relative who will act (a child, grandchild, parent, sibling, niece, nephew, aunt or uncle), then certain guardians, then the county chief fiscal officer (SCPA 1304).
Who inherits in New York without a will?
New York's intestacy law sets the order (EPTL 4-1.1). Here it is as a table:
| Who survives | Who inherits |
|---|---|
| Spouse and children (or grandchildren) | Spouse gets $50,000 plus half the rest; children share the balance |
| Spouse, no descendants | Everything to the spouse |
| Descendants, no spouse | Everything to the descendants |
| No spouse or descendants | Everything to one or both parents |
| No parents | Brothers and sisters, and their children |
| None of the above | Half to each side of the family: grandparents, then aunts, uncles and first cousins |
Notice the first row. A spouse does not automatically get everything when there are children. Many people are surprised by that.
If your closest people are friends, a partner you never married, or a favorite charity, the law leaves them out entirely. A will is how you include them. Our post on dying without a will and no close family explains what happens next.
Who runs the estate if there is no will?
The court issues "letters of administration" to the person who will manage the estate. Priority goes in this order (SCPA 1001):
- Surviving spouse.
- Children.
- Grandchildren.
- Either parent.
- Brothers or sisters.
- Any other eligible relative who qualifies.
If nobody qualifies, letters go to the public administrator or the county chief fiscal officer. A stranger handling your affairs is the outcome most people would rather avoid.
Can someone out of state be executor in New York?
Yes. New York doesn't bar out-of-state U.S. citizens from serving as executor. The bars are narrower (SCPA 707):
- A minor.
- Someone found incompetent.
- A noncitizen who lives outside New York, unless serving alongside a New York resident, at the court's discretion.
- Someone unfit because of substance abuse, dishonesty or similar reasons.
The court may also find ineligible a person who can't read and write English, or who has certain felony convictions. A niece in Ohio or a friend in Florida can generally serve.
How does probate work with a will?
A will is probated in Surrogate's Court. A beneficiary, the named executor, a creditor or another interested person can file the petition (SCPA 1402). Notice goes to close relatives and the named executor, though many sign waivers (SCPA 1403).
Witnesses to the will can sign an affidavit when the will is made. That can save them a trip to court later (SCPA 1406).
How long do creditors have?
There is a seven-month mark, but it works as a safe harbor for the executor. If a creditor doesn't come forward within 7 months of letters first being issued, an executor who paid other bills or made distributions in good faith isn't personally liable for those payments (SCPA 1802). It isn't an absolute cutoff for late debts.
For the full journey, see our probate process guide and how long probate takes.
How much does an executor get paid in New York?
New York sets executor commissions by law, on sums received and paid out (SCPA 2307):
| Portion of the estate | Commission |
|---|---|
| First $100,000 | 5% |
| Next $200,000 | 4% |
| Next $700,000 | 3% |
| Next $4,000,000 | 2.5% |
| Above $5,000,000 | 2% |
For estates of $300,000 or more, each executor generally gets a full commission. If there are more than three, the commissions for three are split among them. Our national post on how much an executor gets paid compares the approaches.
Is a living trust revocable in New York?
Only if it says so. This is the opposite of most states. In New York, a lifetime trust is irrevocable unless it expressly says it is revocable (EPTL 7-1.16).
The trust must be in writing and signed by you, and by at least one trustee if you aren't the only trustee. It must be acknowledged before a notary or signed before two witnesses (EPTL 7-1.17). Changes need the same formality unless the trust says otherwise.
If you have an older trust, check that the word "revocable" is actually in it. Our post on revocable vs irrevocable trusts explains the difference.
Can I skip probate on my house in New York?
Since 2024, yes. New York allows transfer-on-death deeds (Real Property Law 424). The house passes to your beneficiary at death without going through probate for that property.
The steps are strict:
- You need the same mental capacity as for making a will.
- The deed must say the transfer happens at death.
- Two witnesses must sign, present at the same time.
- A notary must acknowledge it.
- It must be recorded in the county where the house sits before your death.
You can revoke it, but once recorded, only by another qualifying recorded document. Tearing up your copy does nothing. Your beneficiary has no rights to the house while you are alive. More options are in how to avoid probate.
Does New York have an estate tax?
Yes, separate from the federal one. For deaths in 2026, the basic exclusion amount is $7,350,000 (NYS Department of Taxation and Finance).
There is a "cliff." The exclusion phases out quickly for estates just above $7,350,000, and the whole estate can become taxable, not just the part over the limit (TSB-M-14(6)M). If your estate is anywhere near that figure, it is worth a conversation with an estate attorney.
Can I make an electronic will in New York?
Not yet. New York has amended its will law to allow electronic wills, but that change takes effect December 12, 2027 (EPTL 3-2.1). Until then, sign on paper with two witnesses.
Handwritten wills don't work for most people either. They are valid only for certain military members and mariners (EPTL 3-2.2).
If settling an estate is more than your family can take on, a Kinly membership lets you name Trella Trust Company as executor or trustee, first or as backup. Settlement work is charged by the hour, and you see the rates before anything starts.
For decisions while you are alive, see our New York power of attorney guide and health care proxy in New York.
Common questions
What is the small estate limit in New York?
$50,000 in personal property, not counting property set aside for the family. Estates at or under that amount can use voluntary administration, which needs no court order or bond (SCPA 1301).
Does my spouse get everything if I die without a will in New York?
Only if you have no children or grandchildren. With descendants, your spouse gets $50,000 plus half the rest, and your descendants share the remainder (EPTL 4-1.1).
Can my executor live in another state?
Yes. New York doesn't bar out-of-state U.S. citizens from serving. The restrictions apply to minors, people found incompetent, certain noncitizens living outside New York, and people found unfit (SCPA 707).
Is my New York trust revocable?
Only if it expressly says so. New York treats a lifetime trust as irrevocable unless the document states it is revocable (EPTL 7-1.16).
Does New York allow transfer-on-death deeds?
Yes, under Real Property Law 424. The deed needs two witnesses, a notary and recording in the county before the owner's death (RPL 424).
Sources
- N.Y. EPTL 3-2.1 (will execution, electronic wills)
- N.Y. EPTL 3-2.2 (handwritten and oral wills)
- N.Y. EPTL 4-1.1 (intestacy)
- N.Y. EPTL 7-1.16 (lifetime trusts irrevocable unless stated)
- N.Y. EPTL 7-1.17 (trust execution)
- N.Y. SCPA 707 (eligibility to serve)
- N.Y. SCPA 1001 (letters of administration)
- N.Y. SCPA 1301 (small estates)
- N.Y. SCPA 1303 (voluntary administration)
- N.Y. SCPA 1304 (who may act)
- N.Y. SCPA 1402 (probate petition)
- N.Y. SCPA 1403 (process)
- N.Y. SCPA 1406 (witness affidavits)
- N.Y. SCPA 1802 (creditors)
- N.Y. SCPA 2307 (executor commissions)
- N.Y. Real Property Law 424 (transfer-on-death deeds)
- NYS Department of Taxation and Finance, Estate tax
- NYS Tax Department, TSB-M-14(6)M
This page is general information, not legal or financial advice. Laws vary by state.