New York's probate and will laws are published in full on the state legislature's website, under the Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act. You do not need a law library subscription to read the statutes governing your will, your executor's duties, or what happens if you die without a will in New York.
How Probate Works in New York
Probate is the court process through which a deceased person's assets are identified, debts are paid, and remaining property is distributed to heirs or beneficiaries. New York's probate court is called the Surrogate's Court, and it handles this process for every county in the state.
- Initiating probate. A petition is filed with the Surrogate's Court in the county where the decedent lived, usually by the executor named in the will.
- Appointment of executor or administrator. If the will is valid, the court appoints the named executor. Without a will, or if the named executor cannot serve, the court appoints an administrator instead.
- Asset inventory. The executor identifies and values the decedent's assets. Some property, including life insurance, retirement accounts, and jointly owned property with survivorship rights, is not part of the probate estate.
- Notice to creditors. Known creditors are notified directly, and a notice is often published, giving creditors a window, typically around seven months, to file claims.
- Payment of debts and taxes. Valid debts, funeral costs, and taxes are paid from estate assets before any distribution to beneficiaries.
- Distribution and closing. Once obligations are satisfied, remaining assets go to the beneficiaries named in the will, or to heirs under the state's intestacy law if there is no will. The court reviews a final accounting before closing the estate.
Where to Find New York's Will Laws
The substantive rules for making a valid New York will are published in Estates, Powers and Trusts Law, Article 3, Part 2, hosted on the New York State Senate's official legislation site. The general requirements are as follows:
- Age and capacity. You must be at least 18 years old and of sound mind, meaning you understand your assets, your beneficiaries, and the purpose of the will.
- Two witnesses. Your will needs two witnesses who are at least 18 and are not beneficiaries under the will. New York does not require the witnesses to sign at the same time as each other.
- Signature. You must sign and date the will at the end of the document. Anything written after your signature is disregarded by the court.
Notarization is not required for a New York will to be valid, but FastWill recommends it, since a notarized affidavit makes the will "self-proving," meaning your witnesses do not have to testify in court to confirm how it was signed.
What Happens If You Die Without a Will in New York
Dying without a will is called dying intestate. In that case, the Surrogate's Court distributes your assets according to New York's intestate succession statute rather than your own wishes. The controlling law, EPTL 4-1.1, sets out a fixed hierarchy of relatives who inherit and in what proportion, starting with a spouse and children. Under the current statute, a surviving spouse and children generally split the estate, with the spouse receiving a set dollar amount plus half of the remaining balance, and the children dividing the rest. If there is no spouse or children, the statute works down through parents, siblings, and more distant relatives in order. This is exactly the outcome a will avoids, which is why we also cover how often to update your New York estate plan so an existing will does not go stale.
New York's Small Estate Process
For smaller estates, New York offers a simplified alternative to full probate called voluntary administration, or small estate administration. The rules are found in Surrogate's Court Procedure Act, Section 1301. In general terms, an estate consisting of personal property valued at $50,000 or less can use this faster, less formal process, though certain property types are excluded from that calculation and the exact threshold is subject to change, so confirm the current figure before relying on it.
A Worked Example
Say a New York resident dies with a bank account, a car, and no real estate, and the total value after debts is $40,000. Because that falls under the $50,000 threshold and there is no real property involved, the family may be able to use voluntary administration instead of a full probate proceeding, meaning less paperwork, lower cost, and a faster path to distributing the assets. If that same estate included a house, even a modest one, the small estate process would not be available, and the estate would need to go through regular probate.
Where to Go for More Help
Beyond the statutes themselves, the New York State Unified Court System publishes self-help guides on the Surrogate's Court process, and many counties maintain their own Surrogate's Court websites with local forms and procedures. For anyone whose estate is more complicated, such as a contested will, a business interest, or a blended family, a consultation with a New York probate attorney is worth the cost, since the general statutes described here do not cover every fact pattern.
Draft Your New York Estate Documents Online
Understanding the law is the first step. FastWill's online will builder is built around New York's specific witness and signature requirements, so the document you create follows this guide's rules from the start, rather than needing correction later. For a broader walk-through of state-specific questions, see our New York estate planning FAQ.
Frequently Asked Questions
Where can I read New York's actual probate and will statutes?
The New York State Senate's legislation website publishes the full text of the Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act at no cost.
What happens to my property if I die without a will in New York?
Your assets are distributed under EPTL 4-1.1's intestacy hierarchy, starting with a spouse and children, rather than according to your own preferences.
Is there a faster probate process for small estates in New York?
Yes. Estates with personal property valued at $50,000 or less and no real estate may qualify for voluntary administration under SCPA 1301.
Do I need a lawyer to make a valid will in New York?
No. As long as you meet the age, capacity, witness, and signature requirements in EPTL Article 3, a self-drafted or online will is legally valid.
Does my will need to be notarized in New York?
No, but notarizing it with a self-proving affidavit means your witnesses will not need to testify in court, which speeds up probate.
Ready to put this into practice? Start your New York will with FastWill's online will builder, built around the exact statutes covered in this guide.
