Applying for Probate Appointment and Taking the Executor’s Oath in New York: What Documents You Need
Short answer: To apply for probate (letters testamentary) in New York you generally must file the original will and any codicils, a certified death certificate, a probate petition (or probate intake forms used by the local Surrogate’s Court), the executor’s oath or affidavit accepting appointment, proof of notice to interested persons, any renunciations or waivers from co-executors or beneficiaries, and information about whether a bond is required (plus a bond or surety papers if the court requires bonding). County Surrogate’s Courts use local forms and may require additional documents.
This article explains the typical documents, the process, and practical tips for a representative hypothetical: “Anna is named executor in John Doe’s will and wants to apply for probate in New York.” This is educational only and not legal advice—consult a licensed attorney or the local Surrogate’s Court for case-specific guidance.
Overview of the New York probate process
When a person dies leaving a will, an executor named in the will may ask the Surrogate’s Court in the county where the decedent lived to admit the will to probate and to issue letters testamentary (authority to act as executor). The court evaluates the paperwork, verifies the will and signatures, and confirms notice to interested persons before issuing letters. New York law governing wills and probate is in the Estates, Powers & Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA). See the statutes here: EPTL (https://www.nysenate.gov/legislation/laws/EPT) and SCPA (https://www.nysenate.gov/legislation/laws/SCP). Also review statewide Surrogate’s Court resources at the New York State Unified Court System: https://www.nycourts.gov/courts/surrogates/ and Surrogate’s Court forms: https://www.nycourts.gov/forms/surrogate/index.shtml.
Typical documents required to apply for probate and executor’s oath (detailed list)
Below is a detailed checklist that most Surrogate’s Courts in New York use. Local courts may use their own intake forms and may require additional items; always check the specific county Surrogate’s Court website or call the clerk’s office.
- The original will and any codicils
Submit the original signed will and any original codicils. The Surrogate’s Court generally will keep the original for the court file. If you only have a copy, explain why and bring proof of efforts to locate the original. - Certified death certificate
Bring a certified copy of the decedent’s death certificate (issued by the registrar of vital records). The court needs this to verify death. New York Vital Records: https://www.health.ny.gov/vital_records/ - Probate petition or filing forms
Complete the court’s probate petition or intake forms requesting probate of the will and issuance of letters testamentary. Many counties use standardized forms available from the Unified Court System: https://www.nycourts.gov/forms/surrogate/index.shtml. - Executor’s oath or affidavit accepting appointment
The named executor must sign a judicial oath or affidavit accepting the appointment and agreeing to perform duties faithfully. The court will provide the oath form or include it in the paperwork package; it is typically sworn before a Notary Public or a court clerk. - Renunciations or waivers (if applicable)
If the will names co-executors and some decline to serve, those persons should sign renunciations. Beneficiaries and others may sign waivers of notice in some situations to speed matters up. - Bond information and surety (if required)
New York courts sometimes require an executor to post a fiduciary bond unless the will waives bond or the beneficiaries consent. If a bond is required, bring a bond application and surety company information or a waiver signed by beneficiaries consenting to no bond. Check the will for a bond waiver clause and be prepared to provide beneficiary consents if the court asks. See EPTL and SCPA rules on bonds: overall statutes at https://www.nysenate.gov/legislation/laws/EPT and https://www.nysenate.gov/legislation/laws/SCP. - List and addresses of interested persons (heirs and beneficiaries)
The court usually requires a list with names, addresses, and relationships of persons entitled to notice (legatees, beneficiaries, next-of-kin). Accurate contact information helps the clerk issue required notices and citations. - Proof of service or notice affidavit
After filing the petition, the court will require proof that interested persons received the required notice or were served with a citation. Keep certified mail receipts, courier records, or proof of personal service. - Affidavit of mailing or affidavit of publication (if necessary)
If you cannot locate some heirs or must publish notice, bring affidavits showing attempts to locate them or proof of publication in the paper (as the court directs). - Identification for the executor
Bring government-issued photo ID for the named executor (driver’s license, passport) so the clerk can verify identity before issuing letters. - Filing fee or fee waiver paperwork
Be prepared to pay the Surrogate’s Court filing fee. If you cannot pay, inquire about fee waivers or court procedures for indigent applicants. - Any prior probate or administration papers (if applicable)
If another court already handled estate matters or earlier proceedings exist, bring certified copies of those papers so the Surrogate’s Court can resolve jurisdictional or procedural issues. - Other court or local forms
Counties sometimes require specific local forms (e.g., information sheets, intake checklists). Check the county Surrogate’s Court webpage before filing.
Step-by-step example (hypothetical)
Hypothetical: Anna is named executor of John Doe’s will. Here is the usual flow:
- Gather documents: original will, certified death certificate, ID for Anna, list of beneficiaries with addresses, and any renunciations from co-executors.
- Complete the Surrogate’s Court probate petition and the executor’s oath form from the county Surrogate’s Court website.
- Visit the clerk’s office, file the petition, pay the fee, and give the clerk the original will and death certificate.
- The court issues a citation or requires notice. Anna or the clerk serves notice on interested persons and later files proof of service.
- If the court approves, it signs an order admitting the will to probate and issues letters testamentary to Anna (possibly after she files a bond or beneficiary waivers if the court requires bond).
Special situations and items to watch for
- No original will: If the original will is lost or destroyed, you must explain circumstances and may need an affidavit from a witness or interested party and may face an in-court hearing.
- Foreign wills: Wills executed outside New York may have special proof requirements to be admitted under EPTL rules.
- Minor or incapacitated beneficiaries: The court may require special guardianship or representation documents for minors or incapacitated persons.
- Bond waivers: A clause in the will can waive bond, but the court can still require a bond in some cases; beneficiary waivers speed the process.
Relevant statutes and official resources
Refer to these official sources for statutory language and forms:
- Estates, Powers & Trusts Law (EPTL): https://www.nysenate.gov/legislation/laws/EPT
- Surrogate’s Court Procedure Act (SCPA): https://www.nysenate.gov/legislation/laws/SCP
- New York State Unified Court System — Surrogate’s Court information and local contacts: https://www.nycourts.gov/courts/surrogates/
- Surrogate’s Court forms (statewide): https://www.nycourts.gov/forms/surrogate/index.shtml
- New York Vital Records (death certificates): https://www.health.ny.gov/vital_records/
Helpful Hints
- Contact the county Surrogate’s Court clerk before you file to confirm required local forms and fees.
- Bring multiple copies of everything: the court keeps originals and returns certified copies later.
- If the will names multiple executors, secure written renunciations from anyone who declines to serve.
- Get the death certificate early — delays in obtaining it often slow probate.
- Ask beneficiaries to sign written waivers of bond if the will allows bond to be waived — this often avoids the cost and delay of a surety bond.
- If you cannot find the original will, document your search and ask the clerk about the procedure — you may need affidavits or a hearing.
- Consider a short consultation with an estate attorney if the estate appears complex (real property, business interests, creditor claims, or contested issues).
- Keep precise records of service and mailing — proof of notice is commonly required and can affect timing.
Final note and disclaimer
This article explains common practice and points to official statutes and court forms in New York. It is educational only and does not constitute legal advice. Rules vary by county, and facts can change outcomes. For specific legal advice about a probate matter, consult a licensed New York attorney or contact the local Surrogate’s Court clerk.