Petition to Probate a Will Requirements in New York

At a glance

Requirements one by one

Governing proceeding, court, and venue

SCPA § 201 gives Surrogate's Court full jurisdiction over decedents' estates. For a New York domiciliary, § 205 places venue in the county of domicile. A non-domiciliary who left New York property or a qualifying wrongful-death claim uses § 206's separate jurisdiction and venue rules, so the county choice should not be inferred from the place of death alone.

Who may present the petition

SCPA § 1402 is broader than “the executor.” It includes a will-designated legatee, devisee, fiduciary, or guardian and specified representatives; a creditor or other interested person; someone entitled to administration with the will annexed; a party to litigation involving the decedent; and, by court order in a stalled filed-will matter, the Public Administrator or County Treasurer. Eligibility to start probate does not establish entitlement to letters. SCPA § 1418 separately supplies the priority order for administration with the will annexed when no executor is qualified to act.

What the petition must say

The petition layers three provisions. SCPA § 303 requires verified pleadings. SCPA § 304 supplies general facts such as the proceeding title, relevant names and domiciles, jurisdiction facts, required service parties, special facts for minors or other persons under disability, unknown-person diligence, a statement that no other interested persons exist, and the requested relief. Section 1402 then adds petitioner and testator citizenship, a description of the offered will and any other will on file, and due-diligence names and addresses for every person to be cited and every legatee, devisee, and fiduciary named in those wills.

Will production and the copy boundary

SCPA § 1401 lets the court examine someone believed to know a will's location or destruction and compel filing of a will in that person's possession or control. The ordinary petition under § 1402 describes the will being offered. If the will is lost or destroyed, § 1407 is a separate proof route: nonrevocation and ordinary execution must be established, and every provision must be proved by two credible witnesses or by a proven true and complete copy or draft.

Proof before probate

Under SCPA § 1404, at least two attesting witnesses ordinarily must be produced and examined when that many are in New York and competent and able to testify. SCPA § 1406 permits attesting-witness affidavits to be accepted as if the testimony were taken in court, but the shortcut ends if a party entitled to process objects or the court requires examination. SCPA § 1405 permits one- witness proof after other testimony is dispensed with and handwriting-plus- other-facts proof when all witnesses are unavailable. SCPA § 1408 still requires the court to inquire and be satisfied about genuineness and valid execution.

Process, return day, and objections

SCPA § 1403 requires process to issue to distributees, the nominated executor subject to its successor-executor qualification, and listed people whose rights under another filed instrument would be adversely affected. SCPA § 307 permits personal delivery of process within or outside New York. Section 308 governs the citation return date; the minimum is 10 days after in-state personal delivery, 20 days for other United States service, and 30 days in the remaining category described by § 308.

An adversely affected person generally must file objections by the return day under SCPA § 1410. If a § 1404 examination was requested, the default changes to 10 days after the examinations finish, unless the parties stipulate or the court fixes another time.

Executor, bond, and letters

SCPA § 707 makes infants, incompetents, certain non-domiciliary noncitizens, and people lacking fiduciary fitness ineligible, and it permits additional disqualification for inability to read and write English or a felony adverse to the estate's welfare. Under § 708, the fiduciary files the domicile and clerk- service designation, the official oath unless exempt, and any required bond. Section 710 starts with no executor bond unless the will, § 806, or § 710 itself requires one. SCPA § 1414 gives letters only after the will is admitted and the person entitled to letters is eligible, appears, and qualifies.

What trips people up

The objection clock is not always the citation return day. A requested § 1404 examination ordinarily moves the deadline to 10 days after the examination is completed, subject to a stipulation or court order.

New York has enacted an electronic-will system, but it is not current law yet. Beginning December 12, 2027, future EPTL §§ 3-6.8 to 3-6.9 will provide a self-proof route, and an electronic will and its audit-trail data must be filed with the Unified Court System within 30 days after execution and kept in court custody. That future rule must not be applied to today's ordinary paper- will petition.

Common questions

Can a beneficiary file if the named executor does nothing?

Potentially. Section 1402 expressly permits a will-designated legatee or devisee to present the probate petition. The beneficiary's ability to petition does not mean the beneficiary is entitled or qualified to receive letters testamentary.

Does a witness affidavit guarantee probate?

No. Section 1406 gives the affidavit the effect of testimony taken before the court, subject to objections and a court-ordered examination. Section 1408 still requires the court to be satisfied that the will is genuine and validly executed.

Is a copy enough when the signed will cannot be found?

Not through the ordinary route. Section 1407 requires proof that the will was not revoked, proof of execution, and clear proof of every provision by at least two credible witnesses or a proven true and complete copy or draft.

Statutes and sources

• N.Y. Surr. Ct. Proc. Act §§ 201, 205-206 — Surrogate's Court jurisdiction and domiciliary and nondomiciliary venue. https://www.nysenate.gov/legislation/laws/SCP/201 (accessed 2026-08-03)
• N.Y. Surr. Ct. Proc. Act §§ 303-304 — verification and general petition contents. https://www.nysenate.gov/legislation/laws/SCP/304 (accessed 2026-08-03)
• N.Y. Surr. Ct. Proc. Act §§ 1401-1403 — production, petitioners, petition contents, and process parties. https://www.nysenate.gov/legislation/laws/SCP/1402 (accessed 2026-08-03)
• N.Y. Surr. Ct. Proc. Act §§ 1404-1408 — witness examination, affidavits, unavailable-witness proof, lost-will proof, and the court's required inquiry. https://www.nysenate.gov/legislation/laws/SCP/1404 (accessed 2026-08-03)
• N.Y. Surr. Ct. Proc. Act §§ 307-308 and 1410 — service, citation return time, and objections. https://www.nysenate.gov/legislation/laws/SCP/308 (accessed 2026-08-03)
• N.Y. Surr. Ct. Proc. Act §§ 707-710 and 1414 — eligibility, qualification, bond, and issuance of letters. https://www.nysenate.gov/legislation/laws/SCP/707 (accessed 2026-08-03)
• New York Electronic Wills Act, Chapter 637 of 2025 as amended by Chapter 89 of 2026 — future electronic-will filing, custody, and self-proof system, effective December 12, 2027. https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=S08887&term=2025&Summary=Y&Actions=Y&Memo=Y&Text=Y (accessed 2026-09-09)