The New York Petition for Probate paired with a Petition to Prove a Lost or Destroyed Will under SCPA § 1407 is the court paper that asks a Surrogate’s Court judge to admit a will to probate when the signed original cannot be found. The nominated executor, a beneficiary, or any person interested in the estate files this petition in the Surrogate’s Court of the county where the decedent lived at death.
Filing this petition is the only legal path to honor a missing will in New York. If the petition fails, the court treats the decedent as if no will existed, and the estate passes by intestacy under EPTL § 4-1.1, which often defeats the decedent’s actual wishes. According to the New York State Office of Court Administration, fewer than 3% of probate filings statewide involve a lost will, and the denial rate on those petitions runs above 30% because of the strict three-prong proof requirement.
In this guide, you will learn:
- 📄 How to complete every box and line of the New York probate petition when the original will is missing
- ⚖️ How to satisfy the three statutory proofs required by SCPA § 1407
- 🗂️ Which affidavits, certificates, and waivers must travel with your petition
- 🏛️ How to file in person, by mail, and through NYSCEF where the county allows it
- 💰 What the filing fee is, how the court calculates it, and how to avoid the most common rejection traps
What the Form Is and Who Must File It
The Petition for Probate (Form P-1, Probate) is the New York Surrogate’s Court paper that opens a probate case. When the original signed will is lost or destroyed, the petitioner files the standard petition together with a separate request under SCPA § 1407 asking the court to admit a copy or reconstructed text of the will. The official form is published on the New York Courts forms page and carries a revision date in the lower corner. Always confirm the revision date on the PDF before you print, because outdated versions are rejected at intake.
Any person with a financial stake in the estate may petition. That includes the nominated executor named in the lost will, a residuary beneficiary, a surviving spouse, an adult child, a creditor, or a public administrator. The Uniform Rules for Surrogate’s Court at 22 NYCRR Part 207 require the petitioner to disclose every distributee, every beneficiary, and every fiduciary nominated in the will.
The form solves a precise problem. New York presumes that a will last seen in the testator’s possession and not found at death was destroyed by the testator with intent to revoke. That presumption is called the Collyer presumption after Matter of Collyer. The petition gives the petitioner a structured way to overcome that presumption with sworn proof. Failing to overcome it means the will is treated as revoked, and the court issues Letters of Administration instead of Letters Testamentary.
The agency that receives the petition is the Surrogate’s Court of the county where the decedent was domiciled at death. The statute that requires the filing is SCPA Article 14, and the deadline is practical rather than statutory. Letters cannot issue until the petition is granted, so most families file within 30 to 60 days of death to avoid frozen accounts and missed creditor windows.
Before You Start: Documents and Information You Need
Gather every item below before you open the PDF. Missing pieces force a return trip and delay letters by weeks.
- Certified death certificate with raised seal, because the court will not open a file without proof of death
- A conformed, photocopied, or drafted copy of the lost will, because SCPA § 1407 requires clear and distinct proof of all provisions
- The drafting attorney’s file, including notes, drafts, and the attorney’s signed retention agreement, because the drafter is usually the strongest witness on due execution
- Names, addresses, and dates of birth of every distributee under EPTL § 4-1.1, because the court must issue citations to people who would inherit if the will fails
- Original Social Security number and last address of the decedent, because the court indexes the file by SSN and county of domicile
- A good-faith estimate of the gross estate value, because the filing fee under SCPA § 2402 scales with estate size
- Contact details for the two attesting witnesses to the lost will, because at least one must sign an affidavit of due execution
- Affidavit of Lost Will explaining the loss and search efforts, because the court needs a sworn account of why the original is missing
- Family tree affidavit if any distributee is unknown or hard to locate, because the court must be satisfied that no closer kin exists
- Renunciations or waivers from any non-petitioning fiduciary nominated in the will, because the court will not skip a higher-priority nominee without a written release
Where to Get the Form and How to Access It
The official Petition for Probate is hosted on the Surrogate’s Court forms portal. You can also find county-specific cover sheets on each county Surrogate’s Court page, such as New York County, Kings County, and Suffolk County. Download the PDF, then save a copy with a clear file name like Smith-Jane-Probate-Petition before typing.
The PDF is fillable in modern Adobe Reader. Tabbing between fields preserves alignment, and saving frequently prevents data loss. Some counties accept typed petitions; others demand hand-print in black ink. When in doubt, follow the local rule sheet posted on the county Surrogate page.
If you cannot access the website, the County Clerk’s office and the Surrogate’s Court intake window keep paper copies. Many counties also stock a multilingual instruction packet at the public help center known as the CLARO program, which serves pro se petitioners.
The form pairs with several mandatory companions. You will also need the Notice of Probate, the Affidavit of Attesting Witness, and the Waiver of Process; Consent to Probate. For the lost-will branch, attach an Affidavit Pursuant to SCPA § 1407 explaining the search and the contents.
Step-by-Step: How to Fill Out the Petition for Probate Line by Line
The petition runs roughly 12 pages. Each section below maps to a labeled box on the official PDF. Follow the boxes in order, and never skip a line. Empty fields trigger automatic intake rejections.
Caption: Surrogate’s Court, County
The caption is the top block that names the court. Type the county where the decedent lived at death, not where the death occurred and not where you live. Maria Lopez writes “SURROGATE’S COURT: COUNTY OF QUEENS” if her father was domiciled in Astoria when he died.
A common nuance is the snowbird case. If the decedent split time between New York and Florida, the court asks for the place of fixed and permanent habitation, judged by voter registration, driver’s license, and tax filings. The most common mistake is filing in the county of death, which forces a transfer order and adds two months to the case. The misconception that “domicile means where you owned the most property” is wrong; domicile turns on intent, not asset count.
File Number
Leave the File Number blank. The clerk assigns the index number at intake and writes it across the top.
If you write a guess, the clerk crosses it out and the file may be misrouted. Filers sometimes confuse the File Number with the decedent’s Social Security number; the two are unrelated, and SSNs never appear on the public caption.
Decedent’s Full Name and Aliases
Box 1 asks for the decedent’s full legal name as it appears on the death certificate, plus every alias used to hold property. Robert James Carter, also known as Bobby Carter and R.J. Carter, is written exactly that way with each alias separated by a/k/a.
Aliases matter because banks, deed offices, and brokerages will not release assets unless the Letters Testamentary list every name on the account. The most common mistake is omitting the maiden name of a widow whose home deed still shows her birth surname. The misconception that aliases are “informal nicknames” is wrong; for the petition, an alias is any name on a recorded asset.
Domicile and Address at Death
Box 2 asks for the street address, city, county, and ZIP code where the decedent lived. Use the address that matches the death certificate, the last tax return, and the voter registration. Janet Wu enters “412 Ocean Parkway, Apt 3B, Brooklyn, NY 11218, Kings County.”
If the decedent lived in a nursing facility for the last weeks of life but kept a home elsewhere, list the prior home and explain the temporary placement in an attached affidavit. Filing the wrong county is the single most common reason a probate file is transferred. A misconception is that “domicile follows the death certificate”; the death certificate often lists the place of death, not domicile.
Date and Place of Death
Box 3 asks for the date and place of death exactly as printed on the certified death certificate. Use the format MM/DD/YYYY. Aisha Bell enters 02/14/2026 and the place “Mount Sinai Hospital, New York, NY.”
The court matches this entry against the certificate page-by-page. A typo of even one digit triggers a deficiency notice requiring an amended petition. The misconception that you can use the date you learned of the death is wrong; only the official date on the certificate is acceptable.
Citizenship
Box 4 asks whether the decedent was a U.S. citizen at death. Check Yes or No. If No, list the country of citizenship.
Citizenship matters because non-citizen estates may face federal estate tax thresholds different from citizens, and a non-resident alien decedent may invoke a treaty. The most common mistake is checking Yes for a long-time green-card holder who never naturalized. A misconception is that “permanent resident” equals citizen; for tax and probate purposes, the two are distinct.
Petitioner Information
Box 5 asks for the petitioner’s full name, mailing address, daytime telephone, relationship to the decedent, and whether the petitioner is the nominee under the lost will. Marcus Reed, son of decedent and nominated executor under will dated 06/15/2019, is the precise format the court expects.
If multiple petitioners file together, each one signs a separate verification page. Filers sometimes list only their P.O. Box, but the court demands a physical street address for service of process; the P.O. Box is acceptable as a secondary mailing line only. The misconception that “petitioner” and “executor” are interchangeable is wrong; you are a petitioner until letters issue, and only then become executor.
Date of the Lost Will
Box 6 asks for the date the lost will was signed. Pull the date from the conformed copy, the attorney’s drafting file, or the witness’s recollection if no copy exists. Carlos Mendez writes “Will dated August 3, 2018”; if a codicil exists, list it on the next line.
The will date controls which witnesses the court will summon. A wrong date causes the wrong witnesses to be subpoenaed, delaying probate by months. The misconception that “the will date is the date of death” is a frequent pro se error; the will date is when the testator signed.
Statement That the Will Is Lost or Destroyed
This is the lost-will core. Insert a sworn paragraph stating that despite a diligent search, the original will dated [date] cannot be located, and that the petitioner believes the will was not revoked by the decedent. Attach the SCPA § 1407 affidavit as Exhibit A.
The petition must allege the three prongs from SCPA § 1407: the will was duly executed, the will has not been revoked, and each provision is clearly and distinctly proved by at least two credible witnesses or by a copy or draft proved to be true and complete. Skipping any prong is fatal to the petition. The misconception that “I just need to swear the will is lost” is wrong; you must affirmatively prove non-revocation, which is the prong most petitions fail.
Names and Addresses of Distributees
Box 7 lists every person who would inherit under EPTL § 4-1.1 if the will failed. Include the spouse, all children (including non-marital children with proof of paternity), and, if none, parents, then siblings, then nieces and nephews by representation. List each distributee with full name, relationship, address, and date of birth.
If a distributee is a minor, the court will appoint a Guardian ad Litem; list the minor’s parent or guardian as well. The most common mistake is omitting an estranged child, which the court discovers via the family tree affidavit and treats as a fraud red flag. The misconception that “only people in the will count” is dangerously wrong; distributees are determined by intestacy law, regardless of the will.
Beneficiaries Named in the Will
Box 8 lists every person and charity named in the lost will, plus their addresses and the dollar amount or share each takes. Match the language of the conformed copy word for word. “To my niece, Priya Shah, of 88 Larch Lane, White Plains, NY, the sum of $25,000.”
Charitable beneficiaries must include the legal name and address of the organization. A common mistake is paraphrasing a residuary clause; the court demands the exact text. The misconception that “beneficiary” and “distributee” are the same is incorrect; a beneficiary is anyone named in the will, while a distributee is anyone who would inherit by law.
Estimated Value of the Estate
Box 9 asks for the gross value of the probate estate, broken into personal property and real property. Use a good-faith estimate based on bank balances, brokerage statements, and recent comparable sales for real estate. Janet Wu enters personal property $185,000 and real property $640,000 for a gross probate estate of $825,000.
The number drives the filing fee under SCPA § 2402. Underestimating to save on the fee is treated as a misrepresentation, and the court may impose the difference plus a sanction. The misconception that “non-probate assets count” is wrong; jointly held property, payable-on-death accounts, and life insurance with a named beneficiary are excluded from this box.
Prayer for Relief
The prayer is the closing paragraph that asks the court for specific orders. The lost-will prayer must request three things: that the copy of the will dated [date] be admitted to probate as a lost will under SCPA § 1407, that Letters Testamentary issue to the petitioner, and that process issue to all necessary parties.
Omitting any of the three requests will leave a gap in the eventual decree. The misconception that “the court will grant whatever fits” is wrong; New York courts grant only what is asked for in the prayer.
Verification
The verification is the sworn signature block at the end. The petitioner signs in front of a notary, who completes the jurat. Marcus Reed signs his full legal name and prints it below the line; the notary affixes the seal and stamp.
A petition signed without notarization is void on intake. The misconception that “an attorney’s signature is enough” is wrong; the petitioner, not counsel, must verify the facts under oath.
Three Filled-Out Examples Using Real Scenarios
Scenario 1: House Fire Destroyed the Original — Conformed Copy Survives
Maria Lopez’s mother died in Queens, and the original will burned in a kitchen fire two years before death. The drafting attorney kept a conformed copy.
| Form Section | What Maria Enters |
|---|---|
| Caption | SURROGATE’S COURT: COUNTY OF QUEENS |
| Decedent’s Name | Elena Lopez, a/k/a Elena Maria Lopez |
| Domicile | 34-12 Steinway St., Astoria, NY 11103 |
| Date of Death | 03/22/2026 |
| Petitioner | Maria Lopez, daughter and nominated executor |
| Will Date | Will dated 11/04/2017, conformed copy attached as Exhibit A |
| Lost Will Statement | Original destroyed in residential fire on 04/10/2024; non-revocation sworn by drafting attorney |
| Distributees | Maria Lopez (daughter), Diego Lopez (son) |
| Estate Value | Personal $92,000; Real $0; Gross $92,000 |
| Prayer | Admit copy under SCPA § 1407; issue Letters Testamentary |
Scenario 2: Will Last Seen in Decedent’s Possession — Presumption of Revocation
Marcus Reed’s father kept the original will in a home safe. After death, the safe was open and empty. No copy exists in the attorney’s file because the drafter retired and shredded the records.
| Form Section | What Marcus Enters |
|---|---|
| Caption | SURROGATE’S COURT: COUNTY OF NEW YORK |
| Decedent’s Name | Robert James Reed |
| Domicile | 225 W 83rd St., Apt 6C, New York, NY 10024 |
| Date of Death | 01/08/2026 |
| Petitioner | Marcus Reed, son and residuary beneficiary |
| Will Date | Will dated 09/12/2015, draft copy reconstructed from witness memory |
| Lost Will Statement | Original last seen in decedent’s home safe; petitioner alleges third-party access and non-revocation |
| Distributees | Marcus Reed (son), Lillian Reed (daughter) |
| Estate Value | Personal $410,000; Real $1,250,000; Gross $1,660,000 |
| Prayer | Admit reconstructed will under SCPA § 1407; rebut Collyer presumption; issue Letters Testamentary |
Scenario 3: Drafting Attorney Holds the Only Copy
Aisha Bell’s aunt signed a will in the lawyer’s office and left the original with the firm for safekeeping. The firm later lost the file during an office move, but the partner who supervised execution remembers every clause.
| Form Section | What Aisha Enters |
|---|---|
| Caption | SURROGATE’S COURT: COUNTY OF WESTCHESTER |
| Decedent’s Name | Patricia Bell, a/k/a Pat Bell |
| Domicile | 17 Maple Hill Rd., Yonkers, NY 10701 |
| Date of Death | 04/30/2026 |
| Petitioner | Aisha Bell, niece and sole beneficiary |
| Will Date | Will dated 06/19/2014, draft retrieved from attorney cloud backup |
| Lost Will Statement | Original lost during firm relocation in 2023; drafting attorney to testify to contents |
| Distributees | Aisha Bell (niece), Theodore Bell (nephew) |
| Estate Value | Personal $58,000; Real $295,000; Gross $353,000 |
| Prayer | Admit draft under SCPA § 1407; issue Letters Testamentary to petitioner |
How to File the Completed Form
The Surrogate’s Court accepts filings through three channels. Choose the one your county supports, and keep a stamped copy as proof.
In Person. Bring the petition, all affidavits, the certified death certificate, and the filing fee to the Surrogate’s Court intake window in your county. New York County’s Surrogate’s Court sits at 31 Chambers Street, New York, NY 10007. Kings County sits at 2 Johnson Street, Brooklyn. Bring two copies; the clerk stamps one and returns it to you. Payment is by certified check, money order, attorney check, or credit card where posted. Processing usually takes 2 to 6 weeks before a citation issues.
By Mail. Mail the petition, attachments, fee, and a self-addressed stamped envelope to the county Surrogate’s Court. Use certified mail with return receipt so you can prove the date of filing. Mail processing runs 4 to 8 weeks because intake clerks prioritize walk-ins. The mailed package must include a cover letter listing every enclosure.
Through NYSCEF. Some counties allow electronic filing through the NYSCEF portal for Surrogate’s Court matters. Confirm acceptance on your county’s NYSCEF page before relying on it. Upload the petition as a single PDF, upload each affidavit as its own exhibit, and pay the fee by credit card. NYSCEF returns a stamped copy within 24 to 72 hours.
The filing fee is set by SCPA § 2402 and scales with the estate’s gross value. Estates under $10,000 pay $45; estates between $10,000 and $20,000 pay $75; estates between $20,000 and $50,000 pay $215; estates between $50,000 and $100,000 pay $280; estates between $100,000 and $250,000 pay $420; estates between $250,000 and $500,000 pay $625; and estates over $500,000 pay $1,250. Save the receipt; you will need it for the executor’s later accounting.
Keep three forms of proof of filing: the date-stamped first page of the petition, the receipt for the fee, and the index number assigned by the clerk. Without all three, you cannot prove jurisdiction in any later collateral proceeding.
What Happens After You File
After intake, the clerk assigns an index number and forwards the file to a court attorney-referee. The referee reviews the petition for facial sufficiency, then issues a citation directing every distributee, every beneficiary, and every nominated fiduciary to appear on a return date.
The citation must be served at least 10 days before the return date for in-state respondents and longer for out-of-state and foreign respondents under SCPA § 307. Service is by personal delivery for in-state adults, by certified mail for out-of-state adults, and by publication for unknown distributees. Each respondent may sign a Waiver and Consent to skip the citation step.
On the return date, the court holds a hearing called a 1404 examination under SCPA § 1404. The drafting attorney and the attesting witnesses testify under oath about due execution, the contents of the will, and the lack of revocation. If the proof satisfies SCPA § 1407, the court signs a decree admitting the will and issues Letters Testamentary to the executor.
If a distributee files objections, the case becomes a contested probate, and the court sets a discovery schedule. Contested lost-will cases often run 12 to 24 months. If the proof falls short, the court issues a decree denying probate and grants Letters of Administration to the closest distributee under SCPA § 1001.
Mistakes to Avoid When Filling Out the Form
- Filing in the county of death rather than domicile. The court transfers the file and you lose two months.
- Omitting an estranged distributee. The omission is grounds for vacatur of the decree once discovered.
- Underestimating estate value to lower the fee. The court can impose the fee differential plus sanctions.
- Listing only beneficiaries and not distributees. The petition is incomplete on its face and is rejected at intake.
- Skipping the SCPA § 1407 three-prong allegation. The petition cannot proceed past the referee’s review.
- Failing to attach a conformed copy or draft. Without proof of contents, the will fails the clear and distinct proof prong.
- Naming a non-resident alien executor without a co-fiduciary. Letters cannot issue under SCPA § 707.
- Forgetting to notarize the verification. The petition is void and must be re-signed and re-filed.
- Listing the death certificate date instead of domicile. The court flags the file as misrouted.
- Submitting an outdated form revision. The clerk rejects the petition at intake without docketing.
- Using a P.O. Box as the only petitioner address. The court cannot serve process and demands a street address.
- Failing to include a self-addressed stamped envelope on a mailed filing. The stamped copy is never returned, leaving you without proof of filing.
Dos and Don’ts
Dos
- Do confirm the revision date on the PDF before printing, because outdated forms are rejected on sight
- Do attach the SCPA § 1407 affidavit as a clearly labeled exhibit, because the referee reads exhibits in order
- Do list aliases used on any titled asset, because banks demand alias-matching letters
- Do reach the drafting attorney early, because the attorney’s testimony is the strongest proof of contents
- Do request waivers from cooperative distributees, because waivers shorten the case by months
- Do save the stamped first page and the fee receipt, because both are needed for later accountings
- Do disclose every distributee, even estranged ones, because omissions can void the decree
Don’ts
- Don’t paraphrase the will’s clauses, because the court requires the exact text under SCPA § 1407
- Don’t sign without a notary, because an unverified petition is void
- Don’t use the date of death as the will date, because the wrong date subpoenas the wrong witnesses
- Don’t underestimate estate value, because the court audits the fee against the inventory
- Don’t file in the wrong county, because the transfer order delays letters by months
- Don’t skip the non-revocation prong, because the Collyer presumption defeats silent petitions
- Don’t ignore minor distributees, because the court will pause the case until a Guardian ad Litem is appointed
Pros and Cons of Filing on Your Own vs. With Help
Pros of Pro Se Filing
- Saves several thousand dollars in attorney fees, because lost-will cases often run $5,000 to $25,000 in legal time
- Keeps the petitioner in direct control of strategy, because every decision is filed by the petitioner
- Forces a deep understanding of the estate, which helps the executor in later phases
- Builds a direct rapport with the court attorney-referee, because pro se petitioners sit at the table
- Avoids attorney scheduling delays, because the petitioner files when ready
Cons of Pro Se Filing
- The SCPA § 1407 three-prong burden is technical, and pro se petitioners often miss the non-revocation prong
- Citation service rules under SCPA § 307 are complex, and bad service voids the return date
- Contested cases require litigation skills few pro se filers have
- The Surrogate’s Court does not give legal advice, so confused filers often spiral into multiple amendments
- Errors in the petition can delay letters by 6 to 12 months, costing far more than the attorney fee saved
Pros of Hiring an Estates Attorney
- The attorney handles citation drafting and service, removing the highest-failure step from the petitioner
- A seasoned probate lawyer knows the local Surrogate’s preferences county by county
- The attorney prepares the witnesses for the SCPA § 1404 examination, sharpening the proof
- Professional malpractice coverage protects the petitioner from filing errors
- Attorneys often negotiate waivers from objecting distributees before a contest forms
Cons of Hiring an Estates Attorney
- Fees can reach 5% of the estate, paid from estate assets
- Petitioner loses some day-to-day control over scheduling
- Unfamiliar attorneys may not know the lost-will quirks of the chosen county
- Attorney calendars sometimes push filings out by weeks
- Communication delays can frustrate grieving family members
Comparison: Petition for Probate vs. Petition for Administration
| Feature | Petition for Probate (with SCPA § 1407) | Petition for Administration |
|---|---|---|
| When used | A will exists but the original is lost | No will exists or the will is denied |
| Statute | SCPA Articles 14 and 1407 | SCPA Article 10 |
| Who is appointed | Executor named in the will | Closest distributee under SCPA § 1001 |
| Burden of proof | Three-prong proof of due execution, non-revocation, and contents | None on existence of a will |
| Typical timeline | 4 to 12 months uncontested | 2 to 6 months uncontested |
| Distribution | Per the will’s terms | Per intestacy under EPTL § 4-1.1 |
Comparison: Filing by Mail vs. Through NYSCEF
| Feature | NYSCEF | |
|---|---|---|
| Speed of stamp-back | 4 to 8 weeks | 24 to 72 hours |
| County availability | All 62 counties | Selected counties only |
| Payment | Certified check or money order | Credit card |
| Original signatures | Wet-ink originals required | Scanned signatures accepted |
| Proof of filing | Certified mail receipt | Electronic time stamp |
Key Entities and How They Relate
The Surrogate’s Court is the trial-level court that hears all probate matters in the county of domicile. The Office of Court Administration publishes the form and oversees the Surrogate’s Court forms portal. The drafting attorney is the most important non-party witness in a lost-will case, because the attorney’s contemporaneous notes anchor the SCPA § 1407 proof. The two attesting witnesses must testify or sign affidavits under SCPA § 1406. The public administrator steps in only if no qualified distributee or fiduciary will serve, under SCPA § 1112.
The Department of Taxation and Finance receives the New York estate tax return on Form ET-706 if the estate exceeds the basic exclusion amount, currently around $7 million for 2026. The IRS receives Form 706 for federal estate tax filings above the federal exclusion. The county recorder processes deed transfers after letters issue.
Recap of Key Rulings That Shape Lost-Will Petitions
Matter of Fox, 9 N.Y.2d 400, established that the proponent of a lost will must overcome the presumption of revocation by clear and convincing evidence, and the case still drives every Surrogate’s analysis. Matter of Collyer set the modern rule that a will last seen in the testator’s possession is presumed destroyed with intent to revoke, which is why the SCPA § 1407 affidavit must address third-party access. Matter of Kleefeld, 55 N.Y.2d 253, clarified that the clear and distinct proof of contents may come from a single credible witness if the will is reconstructed from a draft. The Surrogate’s Court Procedure Act Advisory Committee notes published with 22 NYCRR Part 207 reinforce that the drafting attorney’s affidavit is the preferred proof.
FAQs
Do I file in the county where the decedent died or the county of domicile?
No. You file in the county where the decedent was domiciled at death. The county of death is irrelevant unless it matches domicile, and filing the wrong county forces a transfer.
Can I probate a will if only a photocopy exists?
Yes. A photocopy is admissible if the petitioner satisfies the three prongs of SCPA § 1407, including clear and distinct proof of every provision through the copy and witness testimony.
Do I write the will date or the date of death in Box 6?
No. Box 6 takes the will date only. The date of death belongs in Box 3, and confusing the two subpoenas the wrong witnesses.
Must I list a child who was disinherited in the will?
Yes. Every distributee under EPTL § 4-1.1 appears in Box 7 regardless of will treatment, because the court must serve them with citation.
Is the filing fee based on net or gross estate value?
No. The fee under SCPA § 2402 is based on the gross probate estate, not net. Debts and expenses are not subtracted for fee purposes.
Can I use a P.O. Box as my address in Box 5?
No. The court requires a physical street address for service of process. A P.O. Box may be added as a secondary mailing line only.
Does the petitioner need to be a New York resident?
No. A non-resident may petition, but a non-resident-alien sole executor cannot serve under SCPA § 707 without a New York co-fiduciary.
Will the court accept an unsigned draft of the lost will?
Yes. A draft is acceptable if witnesses confirm it matches the executed version, satisfying the clear-and-distinct-proof prong of SCPA § 1407.
Do I need both attesting witnesses to sign affidavits?
Yes. SCPA § 1406 prefers both, though the court may proceed with one if the other is dead or unavailable, with a sworn explanation.
Can I e-file a lost-will petition in every New York county?
No. Only counties that have opted into NYSCEF for Surrogate’s Court matters accept e-filings; the rest require paper.
Is a notarized verification really required for a self-represented petitioner?
Yes. The verification must be sworn before a notary or the petition is void on intake under 22 NYCRR Part 207.
Does the Collyer presumption apply if the will was kept at the lawyer’s office?
No. The presumption of revocation applies only when the will was last in the testator’s possession. A will kept by the drafting attorney does not trigger the presumption.
Do I list life insurance proceeds in Box 9?
No. Box 9 covers only probate assets. Life insurance with a named beneficiary is non-probate and is excluded from the gross estate value for filing-fee purposes.
What happens if a distributee cannot be located?
Yes, the court will still proceed. The petitioner files a due diligence affidavit and serves by publication, after which the court may appoint a Guardian ad Litem to protect the missing party’s interest.
Related reading
- What Are the Inheritance Rules in New York? (w/Examples) + FAQs
- How to Fill Out New York Letters of Administration with Will Annexed + FAQs
- How to Fill Out New York Petition for Spousal Right of Election + FAQs
- How to Fill Out New Hampshire Petition for Probate of Will + FAQs
- How to Fill Out the District of Columbia Petition for Probate of Will + FAQs
- How to Fill Out the Rhode Island Petition for Probate of Will (Form PC-1.5) + FAQs
- How to Fill Out Arkansas Petition for Probate of Will (w/Examples) + FAQs