New York
New York Probate and Intestate Succession: What Happens Without a Will (2026)
Independently fact-checked against primary sources (last audited August 20, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 20, 2026. · 5 primary sources cited on this page. How we verify our legal content
New York's Surrogate's Court, a dedicated trial court in every one of the state's 62 counties, holds exclusive jurisdiction over probate and estate administration. New York has no inheritance tax, but its state estate tax includes a "cliff" that can tax an entire estate once it edges past the exemption.
Information last verified on 2026-07-16. This article has not yet been reviewed by a licensed lawyer.
How Probate Works in New York
Every one of New York's 62 counties has its own Surrogate's Court, a dedicated trial court within the New York State Unified Court System that holds exclusive jurisdiction over probate of wills, administration of estates, and related decedent's-estate matters (Surrogate's Courts also handle adoptions). Proceedings are named for the county, for example New York County Surrogate's Court or Kings County Surrogate's Court.
New York has not adopted the Uniform Probate Code. Instead, its own Surrogate's Court Procedure Act (SCPA) governs probate and administration, and the process is generally more formal and paper-intensive than the informal, no-hearing track available in UPC states. Probate of a will typically requires a formal petition and citation, giving legal notice to the decedent's distributees and other interested parties, and many proceedings involve a court appearance or a formal decree rather than the light paperwork process available in a state like New Mexico. Once appointed, an executor or administrator receives Letters Testamentary or Letters of Administration establishing their authority to act.
Creditors generally have seven months from the date those letters are issued to present claims against the estate, under SCPA § 1802. That window is not itself a hard cutoff barring a creditor from suing later, but a fiduciary who makes good-faith distributions after it closes is protected from personal liability, which makes the seven-month window the practical driver of how quickly a New York estate can safely close.
Intestate Succession in New York: Who Inherits Without a Will
New York's intestate succession statute, EPTL § 4-1.1, does not distinguish between shared and non-shared children the way some other states do; the same formula applies whenever there is a surviving spouse and any issue. If the decedent is survived by a spouse and issue (children or other descendants), the spouse takes the first $50,000 of the estate plus one-half of whatever remains; the other half of that remaining balance passes to the decedent's issue by representation. EPTL § 4-1.1(a)(1).
If the decedent is survived by a spouse and no issue, the spouse takes the entire estate. EPTL § 4-1.1(a)(2). If the decedent is survived by issue and no spouse, the entire estate passes to the issue by representation. EPTL § 4-1.1(a)(3). Where there is no surviving spouse or issue, the estate passes to the surviving parent or parents equally, EPTL § 4-1.1(a)(4); if there are no parents, to the issue of the parents (siblings and their descendants) by representation, EPTL § 4-1.1(a)(5); and failing all of that, EPTL § 4-1.1(a)(6)-(7) splits the estate between surviving grandparents and their issue on the paternal side and the maternal side. New York is not a community property state, so none of these shares work the way New Mexico's community-property split does.
One way to make sure your property goes to the people you actually choose, rather than following New York's intestate succession order, is to have a valid will in place. recordinglaw.com's free New York Last Will and Testament Generator can help you create one, with no account required.
Small Estate and Simplified Probate in New York
New York's simplified alternative to full probate is called Voluntary Administration, under SCPA Article 13. A "small estate" under SCPA § 1301 is one where the decedent's personal property, not real property, has a gross value of $50,000 or less, excluding the family exempt-property set-off under EPTL § 5-3.1(a). This threshold was raised from $30,000 to $50,000 for proceedings commenced on or after November 25, 2019. Voluntary Administration carries a filing fee of just $1, far below the cost of a full probate proceeding.
The most important limitation to know about is real property: if the decedent owned a house, condominium, or land in their sole name, the estate does not qualify for Voluntary Administration at all, regardless of how small the personal property value is, and some form of full probate or administration is required for the real property to pass.
Does New York Have an Estate or Inheritance Tax?
New York has no inheritance tax. It does, however, levy its own state estate tax, separate from and in addition to the federal estate tax. For dates of death in 2026, the New York basic exclusion amount is $7,350,000 per person, according to the New York State Department of Taxation and Finance, far below the $15,000,000 federal exemption for the same year.
New York's estate tax includes a feature that catches people off guard: the "cliff." If a taxable estate exceeds the exemption amount by more than 5%, roughly $7,717,500 in 2026, the exemption is lost entirely and the whole estate becomes taxable from the first dollar, not just the amount above the exemption. Between the exemption and the cliff, only the excess is taxed, at graduated rates running roughly 3% to 16%. This makes precise estate valuation and timing meaningfully more important in New York than in a state without a cliff provision.
Do You Need a Probate Attorney?
New York's more formal, petition-and-citation probate process, combined with 62 different county Surrogate's Courts each with their own local practice, is a common reason people hire a probate attorney even for estates that are not contested. An attorney becomes especially important when a will is likely to be contested, the estate includes real property that disqualifies it from Voluntary Administration, the family is blended, or the estate is anywhere near New York's estate tax exemption, given the cliff described above.
See Probate by State for how New York's Surrogate's Court process and estate tax cliff compare with other states.
Disclaimer
This article provides general information about probate and intestate succession in New York as of the verification date above. It is not legal advice and does not create an attorney-client relationship. It is not a substitute for advice from a probate attorney licensed in New York, particularly for a contested estate, an estate that includes real property, a blended family, or an estate near New York's estate tax exemption. Figures and thresholds change; verify current details directly with the New York Surrogate's Court or the Department of Taxation and Finance before relying on any figure here.
Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.
More New York Laws
Frequently Asked Questions
What court handles probate in New York?
Surrogate's Court, a dedicated trial court in each of New York's 62 counties, has exclusive jurisdiction over probate of wills and estate administration.
Does New York have an inheritance tax?
No. New York has no inheritance tax. It does levy its own state estate tax, separate from the federal estate tax, with a 2026 exemption of $7,350,000 per person.
What is New York's 'estate tax cliff'?
If a New York taxable estate exceeds the exemption amount by more than 5%, the exemption is lost entirely and the whole estate becomes taxable from dollar one, rather than only the amount above the exemption.
What is New York's small estate threshold?
$50,000 in personal property (not real property), under SCPA § 1301, using the Voluntary Administration process for a $1 filing fee. Real property in the decedent's sole name disqualifies the estate.
Who inherits if you die without a will in New York?
A surviving spouse with children takes the first $50,000 plus half of the balance; the children take the other half by representation. EPTL § 4-1.1(a)(1). A spouse with no children inherits everything.
How long does probate take in New York?
Creditors generally have seven months from the issuance of Letters Testamentary or Letters of Administration to present claims under SCPA § 1802, which drives the practical minimum timeline for closing an estate.
Can a will avoid New York's intestate succession order?
Yes. A valid will lets you choose who inherits your property instead of the fixed formula in EPTL § 4-1.1.
Updates
Independently fact-checked against the cited primary sources; governing law re-checked for recent changes
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Reviewed and approved by an editor
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
New York Estates, Powers and Trusts Law
§ 4-1.1Descent and distribution of a decedent's estateIn forcecited in 2 of our articles
Descent and distribution of a decedent's estate The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows: (a) If a decedent is survived by: (1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation. (2) A spouse and no issue, the whole to the spouse. (3) Issue and no spouse, the whole to the issue, by representation. (4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents. (5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at legislation.nysenate.gov
Also relied on in: Common Law Marriage in New York: Is It Recognized? (2026)
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Sources and References
- New York Courts, Surrogate's Court(nycourts.gov).gov
- SCPA § 1301, Voluntary administration(nysenate.gov).gov
- EPTL § 4-1.1, Descent and distribution of a decedent's estate(nysenate.gov).gov
- New York State Department of Taxation and Finance, Estate Tax(tax.ny.gov).gov
- Nixon Peabody, "New York State Increases Small Estate Threshold to $50,000"(nixonpeabody.com)
- EPTL Article 4, Part 1, § 4-1.1(nysenate.gov).gov