What Families Need to Know After a Death in New York

New York has its own Surrogate's Court system — one per county, five in New York City alone — and its estate laws have several features that surprise out-of-state families: a 7-month creditor period, a state estate tax with a sharp "cliff" effect near the threshold, a unique 30-day witness rule for wills, and one of the more aggressive Medicaid recovery programs in the country. This guide covers the areas where New York law most affects what families need to do after a death.

Probate
Probate & Small Estates in New York

New York probate is filed at the Surrogate's Court in the county where the deceased lived. Each of New York's 62 counties has its own Surrogate's Court; in New York City, there are five — one for each borough.

For small estates, New York offers Voluntary Administration: a simplified process available when the deceased's personal property (not real estate) is worth $50,000 or less. The court appoints a Voluntary Administrator rather than a full executor. While faster and less expensive than full probate, this process still involves filing with the Surrogate's Court — it is not a purely private affidavit like some other states allow.

Full probate is required for estates above $50,000 or those that include real property requiring court transfer. When a will is admitted, the executor receives Letters Testamentary; when there is no will, an administrator receives Letters of Administration. New York typically requires a formal accounting and court approval to close most estates — this contributes to the longer timelines compared to states with independent administration.

The creditor period in New York is 7 months from the date letters are issued — one of the longest in the country. This is a hard minimum; estates generally cannot be fully distributed before this period has run.

Executor commissions in New York are set by statute on a sliding scale (ranging from approximately 2% to 5% depending on the size of the estate). Attorney fees are not statutory and are typically negotiated as hourly or a percentage of the estate.

If you are weighing whether to hire an attorney, see probate lawyer costs by state for typical fee ranges, including New York. Executor pay is covered in executor fees by state.

Wills
Will Signing Requirements in New York

A valid New York will requires the signature of the testator and two witnesses. Both witnesses must be present when the testator either signs the will or acknowledges their previously made signature. New York has an unusual rule: the two witnesses must sign within 30 days of each other. This is one of the only states with such a requirement, and it can become an issue if witness signatures were obtained weeks apart.

Notarization is not required for a valid New York will. However, the witnesses can sign a notarized affidavit — often done at the signing — that lets the Surrogate's Court admit the will without the witnesses testifying later (SCPA 1406).

New York does not recognize holographic wills (unwitnessed handwritten wills) except for members of the armed forces or mariners at sea. A handwritten document without witnesses is not a valid will in New York for most people.

If a witness is also a beneficiary under the will, their gift may be voided or reduced unless there are at least two other disinterested witnesses. This is an important drafting consideration — beneficiaries should generally not witness a will in New York.

Advance Directive
Health Care Proxy in New York

New York uses the Health Care Proxy — a document that designates a healthcare agent to make medical decisions when the principal lacks decision-making capacity. To be valid, it must be signed by the principal and two witnesses, who cannot be the designated agent or a relative of the agent. No notary is required.

New York does not have a statutory Living Will form. Rather than a separate legal document stating treatment preferences, New York practice is for patients to express their wishes through conversations with their healthcare agent, which the agent then communicates to providers. A written statement of wishes can be attached to the Health Care Proxy as guidance for the agent, but it is not a separate enforceable legal instrument.

The Health Care Proxy takes effect when two physicians certify that the patient lacks the capacity to make healthcare decisions — a higher bar than some other states, which require only one physician's determination.

For patients with serious illness, New York uses the MOLST (Medical Orders for Life-Sustaining Treatment) — a physician-signed form that functions as an actual medical order governing CPR, mechanical ventilation, and other life-sustaining treatments. The MOLST is distinct from the Health Care Proxy and carries the force of a physician's order immediately upon signing.

Estate Tax
New York State Estate Tax

New York is one of a relatively small number of states that imposes its own state-level estate tax. For 2026 deaths, the New York estate tax exemption threshold is $7.35 million (adjusted annually for inflation). Estates below this threshold owe no New York estate tax.

The tax rates range from 3.06% to 16% on the taxable estate — rates that apply on top of any federal estate tax obligation.

New York's most important — and counterintuitive — feature is its "cliff" effect. Unlike the federal estate tax, which only taxes the amount above the threshold, New York taxes the entire estate if it exceeds the threshold by more than 5%. An estate worth just over $7,717,500 (5% above $7.35 million) is taxed on its full value and can owe hundreds of thousands of dollars, while one worth exactly $7.35 million owes nothing. This makes careful planning around the threshold especially important for estates in the $7–8 million range.

New York also does not have a portability provision like the federal estate tax. A surviving spouse cannot use their deceased spouse's unused exemption. Married couples in New York who want to maximize their combined exemption need to plan ahead through trusts and other strategies.

There is no separate inheritance tax in New York, and New York City does not impose its own estate tax.

Vehicle Transfer
Transferring a Vehicle After Death in New York

For vehicles in estates that are not going through probate, heirs can transfer title using Form MV-349.1 (Affidavit of Heirship for a Motor Vehicle). The form must be notarized, and the heir presents it along with the original title and a certified copy of the death certificate at any New York DMV office.

If the estate is being probated, the executor uses Letters Testamentary from the Surrogate's Court to transfer title through the standard DMV process — no separate affidavit is needed.

For vehicles held in joint ownership with right of survivorship, the surviving owner presents the death certificate to the DMV for retitling without a court order or affidavit.

Medicaid Recovery
Medicaid Estate Recovery in New York

New York is one of the more aggressive Medicaid Estate Recovery states in the country. The state uses an expanded estate definition: recovery applies not only to assets that pass through probate, but also to assets the decedent had an interest in at death — including life estates, certain trusts, and survivorship interests.

Recovery applies to long-term care costs for Medicaid recipients who were age 55 or older when they received those services.

New York's Department of Health expanded the estate definition for Medicaid recoveries made on or after September 8, 2011, and families should not assume that a revocable living trust fully protects assets from New York MERP. Some trust structures that would avoid recovery in other states may still be subject to a claim in New York depending on how they were created and when.

Recovery is deferred, not erased, while a surviving spouse is living, a child under age 21 is living, or a blind or disabled child of any age is living. It is also deferred for a home where a qualifying sibling or adult child lives. The state can waive recovery in whole or in part for undue hardship, and Medicare cost-sharing for people in Medicare Savings Programs is exempt (NY DOH directive 11 OHIP/ADM-8).

After a Medicaid recipient dies, the NY Department of Health sends a notice of claim to the estate representative, beneficiary, or joint owner, with a questionnaire to complete. The directive's consumer notice says a request for undue hardship consideration must be made within 30 days of the notification, so treat that deadline seriously. Real property may get a post-death lien as soon as practicable after the death.

For how the federal estate recovery rules work, which survivors are protected, and how hardship waivers work, see our guide to Medicaid estate recovery.

Death Certificates
Getting a Death Certificate in New York

Where you order a New York death certificate depends on where the death occurred. For deaths outside New York City, certified copies come from the New York State Department of Health, Vital Records Section, and cost $30 per copy. For deaths within the five boroughs, certified copies come from the NYC Department of Health and Mental Hygiene (DOHMH) instead, and cost $15 per copy plus processing fees. Confirm which office issued the record before you order — requesting from the wrong agency is a common source of delay.

New York restricts certified copies to qualified individuals: the spouse, parent, child, or sibling of the deceased, or someone with a documented legal or financial interest, such as the estate's executor or administrator. Standard mail processing can take 10–12 weeks; local registrars and funeral homes can often expedite this.

Order 10–15 copies upfront. New York estates typically need certified copies for the Surrogate's Court filing or Voluntary Administration, the MV-349.1 vehicle affidavit, bank and brokerage accounts, life insurance claims, and Social Security. See our guide on how many death certificates you need.

Elective Share
Surviving Spouse's Elective Share in New York

New York protects surviving spouses from being disinherited. Under EPTL § 5-1.1-A, a surviving spouse can elect to take the greater of $50,000 or one-third of the deceased spouse's net estate, regardless of what the will actually provides. This applies even if the will leaves the spouse nothing, or leaves them less than the elective share.

New York's elective share calculation is unusually broad: it reaches beyond the probate estate to a wider set of "testamentary substitutes" — including certain revocable trusts, joint accounts, and property the deceased retained control over — that could otherwise be used to avoid the spouse's claim. This makes New York one of the harder states in which to disinherit a spouse through non-probate transfers alone.

The right must be exercised within six months of Letters Testamentary or Letters of Administration being issued, or within two years of death — whichever comes first. Missing this window generally waives the right permanently, so a surviving spouse who feels shortchanged by a will should consult a New York estate attorney promptly rather than waiting.

Intestacy
What Happens Without a Will in New York

New York intestacy law (EPTL § 4-1.1) applies when no valid will exists. New York is not a community property state, so the outcome follows the standard descent hierarchy rather than a community/separate property split.

If the deceased is survived by a spouse and children, the spouse inherits the first $50,000 of the estate plus one-half of whatever remains; the children split the other half equally. If the estate is worth less than $50,000, the spouse takes everything and the children receive nothing. If there are no surviving children, the spouse inherits the entire estate.

With no surviving spouse, the estate passes to children, then to parents, then to siblings, under the standard EPTL hierarchy. New York does not recognize common-law marriage (with limited exceptions for marriages validly formed in another state), so an unmarried partner has no automatic inheritance right under intestacy, regardless of relationship length. See our what happens if you die without a will guide for the national picture.

Bereavement Leave
Bereavement Leave in New York

New York has no state law requiring private employers to provide bereavement leave. Federal law does not require it either — FMLA covers only the employee's own serious health condition or that of a family member, not time off to grieve a death.

Most mid-size and large New York employers offer 3–5 days of paid bereavement leave as a voluntary benefit, and many allow employees to use accrued sick leave or PTO for additional time away. Check your employee handbook or ask HR directly. For a state-by-state comparison, see our bereavement leave by state guide.

Resources
New York Estate Resources

These New York-specific resources cover the most common steps families need after a death:

• New York CourtHelp — Surrogate's Court forms and self-help guidance
• New York State Bar Association Lawyer Referral Service — find a probate attorney in your county
• LawHelpNY — free and low-cost legal aid directory for New York families
• NYS Department of Health: Death Certificates — for deaths outside New York City
• NYC Department of Health and Mental Hygiene — death certificates for deaths within the five boroughs
• NY Office of the Medicaid Inspector General: Estate Recovery — claims process and notice of intent