Probate Guide

What Is Probate?

When someone dies with a valid willin New York, that will must be "proved" — or probated— in Surrogate's Court before it has legal effect. Probate is the court process that validates the will and authorizes the named Executor to manage and distribute the estate.

Once the court approves the petition, the Executor receives Letters Testamentary — the official document that gives them legal authority to act on behalf of the estate. With Letters Testamentary, the Executor can access bank accounts, manage property, pay debts, and distribute assets to beneficiaries.

Who Can File for Probate?

In Brooklyn, the following people can file a Petition for Probate:

• The Executor named in the will — this is the most common scenario
• A beneficiary named in the will
• Any person with an interest in the estate (such as a creditor, in rare cases)

If the named Executor is unable or unwilling to serve, the court can appoint an Administrator c.t.a. (cum testamento annexo — "with the will annexed") to administer the estate according to the will's terms.

Required Documents

You will need to gather the following documents before filing your petition in Kings County Surrogate's Court:

1. Original Will — must be unstapled. If the will was stapled, the court may require explanation of any staple holes.
2. Death Certificate — original certified copy from the funeral home or vital records office.
3. Petition for Probate and Letters Testamentary — the formal court filing requesting probate.
4. Oath and Designation of Executor — the Executor swears to faithfully perform their duties.
5. Affidavit of Comparison (P-13 form) — comparing the photocopy to the original will.
6. Notice of Probate (SCPA 1409) — mailed to all interested parties (heirs, beneficiaries).
7. Affidavit of Mailing Notice of Probate — proof the notice was sent.
8. Attorney Certification (22 NYCRR 207.4) — required when an attorney files on behalf of the petitioner.
9. Paid funeral bill — receipt showing the funeral expenses have been paid.
10. List of witnesses to the will — names and addresses of the persons who witnessed the will signing.

Step-by-Step Process

Step 1: Gather Documents

Collect the original will, death certificate, funeral bill, and witness information. Make certified copies of the death certificate — you will need multiple copies for banks, title companies, and other institutions.

Step 2: Prepare the Petition

Complete the Petition for Probate form. This includes details about the decedent (date of death, domicile, marital status), a list of all beneficiaries and heirs, and the approximate value of the estate.

Step 3: File with the Court

File the petition and all supporting documents with the Kings County Surrogate's Court Probate Department at 2 Johnson Street, Room 319, Brooklyn, NY 11201. Filing can be done in person or via NYSCEF (electronic filing).

Step 4: Serve Notice / Obtain Waivers

All interested parties (heirs, beneficiaries listed in the will) must either be served with a Citation or sign a Waiver and Consent. If everyone signs a waiver, the process is faster — no court hearing is required.

Step 5: Court Review

The court reviews the petition. If all documents are in order and no objections are filed, the court issues a Decree admitting the will to probate. If there are objections (a will contest), the process takes longer and may require a hearing or trial.

Step 6: Receive Letters Testamentary

Once the Decree is entered, the court issues Letters Testamentary to the Executor. These letters are your legal authority to act on behalf of the estate. Order multiple certified copies — banks and institutions each require their own.

Step 7: Administer the Estate

With Letters in hand, collect assets, pay outstanding debts and taxes, file estate tax returns if required (ET-85 and/or ET-117), and distribute assets to beneficiaries according to the will's terms.

How Long Does Probate Take?

In Brooklyn, a straightforward probate proceeding typically takes 4 to 8 months from filing to receiving Letters Testamentary. However, this can vary significantly:

• Uncontested with waivers (fastest): 3–5 months. If all beneficiaries sign waivers, no hearing is needed.
• With citation service: 5–8 months. Serving citations adds time, especially if heirs are hard to locate.
• Contested (will contest): 1–3+ years. If someone objects to the will, the case enters litigation.

Common Issues That Cause Delays

• Missing or damaged original will— if the will cannot be found, a "lost will" proceeding may be required (SCPA 1407).
• Staple holes or missing pages — raises questions about whether pages were removed; court may require affidavit.
• Witnesses cannot be located — if witnesses to the will are unavailable, alternative proof of execution is needed.
• Heirs in foreign countries — serving citation internationally requires alternative service methods and takes longer (see the Affidavits & Filings page).
• Will contest / objections — any interested party can object, turning probate into contested litigation.
• Outstanding estate taxes — the court may not issue unrestricted Letters until ET-85 is filed.

Forms Needed

The following forms are used in a Brooklyn probate proceeding. All official forms are available on the official court website:

• Petition for Probate and Letters Testamentary
• Oath and Designation of Executor
• Affidavit of Comparison (P-13)
• Notice of Probate (SCPA 1409)
• Waiver and Consent — for beneficiaries who agree to waive citation
• Renunciation — if the named Executor declines to serve
• Attorney Certification (22 NYCRR 207.4)

Frequently Asked Questions

Do I need a lawyer to probate a will?

No — you can file pro se (without an attorney). However, probate involves complex legal forms and procedures. Many people find it helpful to at least consult with an attorney, especially if the estate is large or there are potential disputes among beneficiaries.

How much does probate cost in Brooklyn?

Court filing fees vary based on the estate's value. For estates under $10,000, the fee is typically around $45. For larger estates, fees increase. Attorney fees are additional and vary. In New York, attorney fees for estate work are not fixed by statute — they are either agreed upon with the client or set by the court.

Can I probate a will years after the person died?

Yes. There is no time limit on filing for probate in New York. In one Brooklyn case, an estate was opened 19 years after the decedent's death. While delays make the process more complex (assets may have been distributed informally, witnesses may be harder to find), it is never too late to probate a valid will.

What if the will is contested?

If any interested party objects to the will, the probate proceeding becomes contested. Common grounds for contest include undue influence, lack of testamentary capacity, fraud, or improper execution. Contested cases may require discovery, depositions, and a trial.

What's the difference between Letters Testamentary and Letters of Administration?

Letters Testamentary are issued when there IS a valid will and the named Executor is appointed. Letters of Administration are issued when there is NO will and the court appoints an Administrator. Both give the holder legal authority to manage the estate.

What does a Certificate of Letters cost?

A Certificate of Letters typically costs $6 per certificate. If you need updated proof that the executor still has authority, this is the document most banks and title companies request. See our full Surrogate's Court filing fees guide for more details.