Why probate is worth avoiding in New York
New York does not use a statutory percentage fee schedule for attorneys. Be clear about this, because New York does have famous statutory percentages: they apply to the executor, not the lawyer, and the two get confused constantly. Attorney fees, reasonable compensation, not a percentage of the estate. Under SCPA § 2110 the Surrogate's Court is authorized to fix and determine an attorney's compensation, and the court looks at the time and value of services performed; it can order a refund if a lawyer took more than the fair value of the services. In practice New York estate lawyers charge hourly (commonly ~$300–$650/hour depending on county and firm) or a negotiated flat fee. Some quote a percentage as a convenience, but no statute entitles them to one, and the Surrogate can cut a fee that is out of proportion to the work. Ask for a written retainer stating the basis; a fee is reviewable. Executor/administrator commissions. These are statutory percentages (SCPA § 2307), on sums received and paid out: • 5% on the first $100,000 • 4% on the next $200,000 (to $300,000) • 3% on the next $700,000 (to $1,000,000) • 2.5% on the next $4,000,000 (to $5,000,000) • 2% above $5,000,000 Commissions are computed separately for receiving and for paying out, each at half the stated rate. A family member serving as executor may waive commissions (often sensible, commissions are taxable income to the executor, an inheritance generally is not). Court filing fees (SCPA § 2402), based on the gross estate as stated in the petition: • 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 (this is the cap; New York does not scale filing fees indefinitely) • Voluntary administration (small estate): $1 flat (SCPA § 1304) other costs to budget: certified copies of letters (a few dollars each, and banks and brokerages typically want recent ones, many refuse letters older than six months); service of citation and, if a distributee cannot be located, publication; a guardian ad litem's fee if any distributee is a minor, incapacitated or unknown; surety bond premium where the will does not waive bond or the estate is intestate; appraisal fees; and accounting fees. A straightforward uncontested New York estate of a few hundred thousand dollars commonly runs $3,000–$10,000 all-in; a contested probate or one requiring a kinship hearing can run far higher.
Creditor claim period: 7 months from the date letters are issued (SCPA § 1802). This is the number that sets the floor. If a claim is not presented within 7 months of issuance of letters, the fiduciary is not chargeable for assets paid out in good faith before the claim was presented. Note it runs from issuance of letters, not from the date of death, so delay in filing the petition delays the start of the clock, and no competent executor makes final distribution before the 7 months expire. Realistic total duration: • SCPA § 1310 direct payment (bank pays a spouse or relative): days to a few weeks, no court. • Voluntary administration / small estate (SCPA Art. 13): certificate often issued within 2–8 weeks of filing, depending on county backlog. This is the fast track. • Uncontested probate where all distributees sign waivers and consents: letters testamentary typically in 1–4 months; full settlement and distribution in roughly 9–18 months once the 7-month claim period and any tax filings are accounted for. • Where distributees must be served with a citation rather than signing waivers, add 2–4 months for the return date and any adjournments. • New York City counties (New York, Kings, Queens, Bronx, Richmond) and Westchester and Nassau run slower than upstate counties; 12–24 months for a routine estate is common there rather than exceptional. • Taxable estates: a New York estate tax return (Form ET-706) is due 9 months after death, and a federal Form 706 where required; an estate that must wait for a closing letter or that holds a business or hard-to-value asset routinely runs 2–3 years. • Contested probate (objections to the will, undue influence, capacity) or a kinship proceeding to prove distributees: 2–5 years is realistic, sometimes longer. A separate 18-month clock matters after a TOD deed: under RPL § 424, claims to reach TOD-transferred property when the probate estate is insufficient may be brought within 18 months of death. A beneficiary who received a house by TOD deed should not treat the property as free and clear until that window closes.
New York protects the family first
New York does not use the Uniform Probate Code vocabulary of "homestead allowance" and "family allowance," and it has no probate homestead for a surviving spouse. What it has instead is the exempt property set-off under EPTL § 5-3.1, plus the spousal right of election. Exempt property (EPTL § 5-3.1): set aside for the surviving spouse, or if there is no surviving spouse, for children under 21. These items pass to the family off the top and are not part of the estate available to general creditors or beneficiaries, and they are excluded when computing the $50,000 small estate threshold: • Housekeeping utensils, musical instruments, sewing machine, jewelry, household furniture and appliances: up to $20,000 aggregate • Family bible or other religious books, family pictures, books, computer tapes/discs/software, DVDs, CDs: up to $2,500 aggregate • Domestic and farm animals with 60 days of feed, farm machinery, one tractor and one lawn tractor: up to $20,000 aggregate • One motor vehicle not exceeding $25,000 in value • Money: cash, checking, savings, money market accounts, certificates of deposit and marketable securities: up to $25,000, reduced by the excess value of any item claimed above its own cap Total roughly $92,500 where every category applies. The statute lets the family buy an over-cap item (a car worth more than $25,000, for example) by paying the difference to the estate rather than losing it. There is no New York homestead allowance and no ongoing family maintenance allowance during administration. If the family needs cash before letters issue, the tools are the exempt-property money item above and the SCPA § 1310 direct bank payment (up to $30,000 to a spouse immediately). Right of election (EPTL § 5-1.1-A), a surviving spouse cannot be disinherited. The elective share is the greater of $50,000 (or the whole net estate if less) or one-third of the net estate, computed after debts, funeral and administration expenses but disregarding estate taxes. Critically, the elective share reaches "testamentary substitutes," which expressly include Totten trusts, payable-on-death accounts, joint tenancies and tenancies by the entirety, revocable transfers and retained-interest transfers, retirement and deferred-compensation plans, gifts causa mortis, gratuitous transfers within one year of death, and property subject to a general power of appointment. A transfer on death deed is a revocable transfer and should be expected to be captured. The practical point for a probate-avoidance page: routing everything around probate does not defeat a New York spouse's share. The election must generally be made within six months of issuance of letters and no later than two years after death.
Before death: what works in New York
These have to be put in place while the owner is alive and competent. In New York the tools available are:
- Transfer-on-death deed (RPL § 424, recorded before death)
- Revocable living trust
- Tenancy by the entirety (married couples, automatic under EPTL § 6-2.2)
- Joint tenancy with right of survivorship (must be expressly declared)
- Payable-on-death (POD) bank accounts
- Totten trust / in-trust-for account
- Transfer-on-death (TOD) securities and brokerage registration
- Beneficiary designations on life insurance, IRA, 401(k) and pensions
- Life estate deed with remainder
- Small estate voluntary administration (SCPA Article 13, $50,000 personal property, $1 fee)
- Direct payment of small sums without letters (SCPA § 1310, up to $30,000 to a spouse)
- Exempt property set-off to spouse or minor children (EPTL § 5-3.1)
- Lifetime gifting (mind the 3-year NY estate tax clawback)
Real property: the transfer-on-death deed
Yes, but this is new law, and most older guides (and many lawyers' websites) still say New York has no TOD deed. That is now wrong. New York enacted Real Property Law § 424, titled "Transfer on death deed," in 2024; it is in force and current as of 2026. The statute is modeled on the Uniform Real Property Transfer on Death Act but New York added its own formalities, and the differences are where families get burned. Name New York uses: "transfer on death deed" (TOD deed). New York does not use the term "beneficiary deed." Execution requirements under RPL § 424, all of these, or the deed is void: • It must contain the essential elements and formalities of a properly recordable inter vivos deed. • It must state that the transfer takes effect at the transferor's death. • It must be signed in the presence of TWO witnesses who are present at the same time and who also sign. This two-witness rule is unusual, most TOD-deed states require only notarization, and a New York TOD deed signed with a notary alone is invalid. • It must be acknowledged before a notary. • It must be recorded in the county clerk's office of the county where the property sits before the transferor dies. An unrecorded TOD deed found in a drawer after death does nothing. Other key features: • Freely revocable; a contrary provision in the deed is ineffective. Revoke by a later recorded TOD deed, a recorded instrument of revocation, or an inter vivos deed that expressly revokes, each must be acknowledged and recorded before death. You cannot revoke a TOD deed by will. • No consideration required; the beneficiary need not know about it or accept during the owner's lifetime. • No effect during life: the owner keeps full ownership, can sell or mortgage, and the beneficiary has no interest and no creditor exposure until death. • The beneficiary must survive the transferor; the interest is contingent on survivorship. A beneficiary may renounce/disclaim as if the interest passed by will. • Joint owners: if the transferor is a joint owner and is survived by other joint owners, survivorship wins, the property goes to the surviving joint owner(s), and the TOD deed only takes effect if the transferor was the last surviving joint owner. So a TOD deed by one spouse on a tenancy-by-the-entirety home is a backup plan, not a present transfer. • Property passes subject to existing mortgages, liens and encumbrances. The beneficiary inherits the mortgage. Big caveat: TOD-transferred property is not beyond estate creditors. If the probate estate is insufficient, the estate can enforce claims against property that passed by TOD deed, with liability apportioned among multiple TOD properties in proportion to net values, and claims may be brought within 18 months of death. Practically, this means a beneficiary should not sell or spend the proceeds quickly, and Medicaid estate-recovery exposure should be discussed with counsel before relying on a TOD deed as an asset-protection device. Alternatives that still matter in New York: revocable living trust (the standard workhorse, especially for out-of-state real property or to avoid a contested probate); life estate deed with reserved powers; tenancy by the entirety for married couples (automatic, no document needed beyond the deed). Note that New York does not recognize the "lady bird" / enhanced life estate deed: only Florida, Texas, Michigan, Vermont and West Virginia use that device. Do not draft one for New York property.
N.Y. Real Property Law § 424 ("Transfer on death deed")
Usually the best real-property answer
A transfer-on-death deed keeps full control with the owner. It can be revoked at any time and the beneficiary gets no present interest, so their creditors and their divorce cannot reach the property. That is the crucial advantage over simply adding a child to the deed, which is the mistake it exists to prevent.
Accounts: the fastest win
Payable-on-death and transfer-on-death designations are available on bank and brokerage accounts in every state including New York. They cost nothing, take ten minutes at the branch, do not affect your control of the money while you are alive, and remove the account from probate entirely. If someone reading this only does one thing, this is the one.
The same principle already governs retirement accounts and life insurance, which is why the beneficiary form matters more than the will, a beneficiary designation overrides the will, every time. Review them after every marriage, divorce, birth and death.
After death: the small estate affidavit
None of the above can be done retroactively, but New York still has a route. Under Voluntary Administration. "Settlement of Small Estates Without Court Administration," N.Y. Surrogate's Court Procedure Act (SCPA) Article 13. NY also has a separate, truly out-of-court affidavit route: SCPA 1310 "Payment of certain debts without administration.", the next of kin can collect the decedent’s property without opening probate when:
- the estate is worth $50,000 or less (gross value), and
- no probate case has already been opened.
Gross value of the decedent's personal property only, $50,000 or less, exclusive of property required to be set off to the surviving spouse/children under 21 under EPTL 5-3.1(a). Real property is not counted and is not transferable under Article 13 at all (SCPA 1302). "Gross value", not net of debts.
Full detail, including who may sign and where to take it, is on our New York small estate affidavit page.
Common mistakes in New York
- Assuming a will avoids probate.It doesn’t. It directs probate. This is the most common misconception in the whole subject.
- Adding an adult child to the deed.It does avoid probate, and it also exposes the property to that child’s creditors and divorce, may trigger gift-tax reporting, and can cost them the step-up in basis. A transfer-on-death deed achieves the same result without any of that.
- Paying for a trust and never funding it. A trust only governs assets actually retitled into it.
- Stale beneficiary forms. The form beats the will.
- Overestimating the estate after a death. Families routinely count the jointly-held house, the 401(k) with a named beneficiary and the POD savings account, conclude they are over the limit, and pay for probate they never needed.
- Filing probate before checking. In most states, once a personal representative is appointed the affidavit route closes permanently. The reverse is not true, so check first.
Worth knowing in New York
1. The TOD deed is new and easy to botch. Two witnesses signing at the same time plus a notary plus recording before death (RPL § 424). Most TOD-deed states require only a notary, so out-of-state forms and generic online templates will produce an invalid New York deed. Recording after death is fatal. It cannot be cured. 2. No lady bird deeds. New York does not recognize the enhanced life estate ("lady bird") deed. Only a handful of states do. Anyone offering you one for New York property is working from the wrong state's playbook. Use RPL § 424 or a trust. 3. The small estate route does not cover real estate. SCPA Article 13 voluntary administration is capped at $50,000 of personal property, and it cannot be used to sell or convey real property held in the decedent's sole name. A $30,000 bank account plus a solely-owned house means full administration. This single fact defeats more small estate filings in New York than anything else, and it is the strongest argument for recording a TOD deed or funding a trust while the owner is alive. 4. The default co-ownership rule cuts both ways (EPTL § 6-2.2). Married couples get tenancy by the entirety automatically, with survivorship and no probate. Everyone else gets a tenancy in common unless the deed expressly says "joint tenants with right of survivorship." Two siblings on a deed with no magic words means the deceased sibling's half goes through probate, the opposite of what they intended. 5. Co-op apartments are personal property, not real estate. A New York City co-op is shares of stock plus a proprietary lease. A TOD deed under RPL § 424 does not apply. The transfer route is the stock certificate's beneficiary designation or a trust, and, the part that stops families cold, the co-op board must still approve the transferee, even a child who has lived there for years. Plan co-ops separately. 6. The spouse cannot be routed around. New York's elective share reaches testamentary substitutes: joint accounts, POD accounts, Totten trusts, revocable trusts, retirement plans and revocable transfers all count (EPTL § 5-1.1-A). Probate avoidance is not disinheritance planning in New York. 7. TOD property is not creditor-proof for 18 months. If the probate estate cannot pay debts, RPL § 424 lets the estate reach TOD-transferred real property, apportioned among multiple TOD properties, with an 18-month window from death. Discuss Medicaid estate recovery with counsel before treating a TOD deed as protection. 8. The New York estate tax cliff (Tax Law § 952). New York has its own estate tax with an exclusion far below the federal one. If the New York taxable estate exceeds 105% of the basic exclusion amount, the credit is lost entirely, not phased down, gone, so the whole estate is taxed from the first dollar. Going a few percent over the line can cost hundreds of thousands. Check the current year's exclusion figure with the NYS Department of Taxation and Finance and consider a charitable "Santa Clause" bequest to stay under. Also note New York claws back taxable gifts made within three years of death. 9. The court is called Surrogate's Court, one per county, and local practice varies more than in most states: form requirements, waiver formats and calendar speed differ noticeably between, say, Kings County and Otsego County. Call the specific county's Surrogate's Court clerk before filing. 10. Kinship hearings. If the decedent left no close relatives and the distributees are cousins or unknown, New York requires proof of kinship, often with a genealogist, a guardian ad litem for unknown distributees, and the Public Administrator involved. This can add years and consume a large share of the estate. A will, a trust, or beneficiary designations avoid it entirely. 11. Banks and "Stale" Letters. New York financial institutions routinely refuse letters testamentary more than six months old and demand freshly certified copies. Budget for repeat trips to the clerk.
Sources
Common questions
Has someone already died in New York?
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