Two names, one question: is there a will?
When someone dies in New York with assets in their sole name, the estate usually goes through the Surrogate's Court of the county where they made their permanent home. The court uses two main proceedings, and the difference between them has nothing to do with the size of the estate or the county — it turns on whether a valid will exists.
Probate is the proceeding for estates with a will. The court examines the document, confirms it was signed the way the law requires, and officially appoints the executor — almost always the person the will itself names. The estate is distributed the way the will says.
Administration is the proceeding for estates without a will (in legal terms, intestate estates). There is no document to examine and no named executor, so the court appoints an administrator — normally the closest relative — and state law, not the family, decides who inherits and in what shares.
Everything else — which forms get filed, who gets notified, which authority document issues — flows from that single difference.
The side-by-side comparison
| Probate (with a will) | Administration (no will) | |
|---|---|---|
| Starting fact | A valid will exists | No valid will |
| Who usually petitions | The executor named in the will | The closest heir under the statutory priority order |
| Who the court appoints | Executor | Administrator |
| The authority document | Letters Testamentary | Letters of Administration |
| Who inherits | The people and shares the will names | Family, in the order set by EPTL 4-1.1 |
| Who must be notified | The heirs-at-law, who sign waivers or are cited | Relatives with an equal or better right to serve |
| Bond (insurance for the estate) | Often waived by the will's own language | More often required, unless those affected consent |
| Common sticking points | Locating the original will, proving its signing, objections | Proving kinship, gathering consents, bond requirements |
Court fees are missing from the table for a reason: they are identical. Both proceedings use the same statewide estate-value scale — see the statewide fee schedule.
What “letters” mean — and why everyone asks for them
In Surrogate's Court vocabulary, “letters” are not correspondence — they are the official document proving the court appointed someone to act for the estate. Letters Testamentary prove an executor's appointment; Letters of Administration prove an administrator's. In practice they work the same way: they are the fiduciary's credential.
Until letters issue, no one has legal authority to empty the decedent's bank account, sign a contract to sell their house, or settle their debts. That is why banks, title companies, and buyers ask to see letters — and often ask for a recently issued certificate of letters, which shows the authority is still in force.
Letters can also come with limits. The court may issue restricted letters — for example, allowing the fiduciary to administer the estate but requiring court permission before selling real property or collecting certain funds. Those restrictions appear on the face of the document.
Who inherits when there is no will
With a will, the answer is whatever the document says. Without one, the answer comes from a statute — EPTL 4-1.1 — which applies the same way statewide:
- Spouse and children: the spouse takes the first $50,000 plus half of the rest; the children share the remainder.
- Spouse, no children: the spouse inherits everything.
- Children, no spouse:the children inherit everything in equal shares (a deceased child's own children step into their parent's share).
- No spouse, no children: the parents inherit; if none, siblings (or their children); and from there the statute works outward to more distant relatives.
A sister statute — SCPA 1001 — uses essentially the same order to decide who has priority to be appointed administrator: spouse, children, grandchildren, parents, siblings, then other heirs.
The rough shape of the process — either way
From a distance, the two proceedings share the same four-stage structure:
1. Petition and filing
Someone with the right to act files a petition in the Surrogate's Court of the decedent's county, with the death certificate, the will if there is one, and the filing fee.
2. Notice to the family
The people the law protects — heirs-at-law in probate, equal-or-better-ranked relatives in administration — either sign waivers and consents or receive a citation to appear.
3. Letters issue
Once the court is satisfied, it admits the will (in probate) or grants the petition (in administration) and issues letters — the fiduciary's proof of authority.
4. Collect, pay, distribute
The fiduciary gathers assets, pays debts, expenses, and any taxes, and distributes what remains — under the will's terms or the intestacy statute — then accounts to the beneficiaries.
The practical difference is where the friction shows up. In probate, the hard work usually centers on the document: locating the original will, proving its signing, answering objections. In administration, it centers on people: proving who the closest relatives are (sometimes with genealogists in scattered families), gathering consents, and satisfying bond requirements.
When the line between the two blurs
Some situations mix elements of both proceedings:
- A will exists, but no executor is available.If every named executor has died, renounced, or doesn't qualify, the court can appoint someone else to administer the estate under the will — a hybrid known as administration c.t.a. (“with the will annexed”). The will still decides who inherits.
- The fiduciary dies mid-case. If an executor or administrator dies or is removed before finishing, the court appoints a successor (in will estates, an administrator d.b.n. — “of goods not administered”) to complete the job.
- The estate is small. With $50,000 or less in personal property, voluntary administration offers a simplified track — and it exists both with a will and without one.
- Only one thing needs moving. Sometimes no full proceeding is needed at all: if every asset passed by beneficiary designation or joint ownership, there may be no court estate to open.
Same statewide law, 62 different clerk's offices
Everything above is state law: the same statutes and the same official forms apply from Long Island to Buffalo. What changes by county is practice — e-filing, window procedures, issuance timelines, and local habits. For those details, head to your county's section:
- Manhattan (New York County)
- Brooklyn (Kings County) (guide on its own dedicated site)
- Nassau County (guide on its own dedicated site)
- Queens County (guide coming soon)
- Suffolk County (guide coming soon)
- Bronx County (guide coming soon)
Is your case a Manhattan case? There is a county-specific decision guide with the form codes used there: Probate or Administration? — Manhattan. And if you don't yet know which county applies, start with Which Surrogate's Court do I file in?
Frequently Asked Questions
Is probate faster or cheaper than administration in New York?
Neither is inherently cheaper — the court filing fee follows the same statewide estate-value schedule for both. Speed depends less on the label and more on the people: a probate where every distributee signs a waiver moves quickly, and so does an administration where the family agrees. Contested cases of either kind are the slow ones.
Who has the right to be appointed administrator when there is no will?
State law (SCPA 1001) sets the order of priority: the surviving spouse first, then children, then grandchildren, then a parent, then siblings, and then other relatives who inherit — with preference to the person entitled to the largest share. People with equal rights can agree among themselves, or one can serve with the others' consent.
Does having a will mean the family avoids probate?
No — the opposite. A will only takes effect after the Surrogate's Court admits it to probate. What actually bypasses the court is property that passes outside the estate: joint accounts, beneficiary designations on life insurance or retirement accounts, and assets held in trust.
What happens if a will turns up after administration has started?
A later-discovered will can be offered for probate even though letters of administration were already issued. If the court admits the will, the administration is superseded — the administrator's authority ends and the estate is handled under the will. This is one reason courts ask petitioners to state that they searched for a will.
Do executors and administrators get paid?
Both are entitled to fiduciary commissions set by state statute, calculated as a percentage of the estate they handle — the same commission scale applies whether the fiduciary is an executor or an administrator. Many family members serving as fiduciaries choose to waive commissions, especially when they are also the main beneficiary.
Is the process different in different counties?
The law is statewide: the same statutes, the same official forms, the same filing-fee schedule. What differs is local practice — e-filing participation, clerk's office procedures, scheduling speed, and payment handling. The county sections of this guide cover those local details.