If you are handling a loved one’s estate in New York, one small mistake in Surrogate’s Court can cost your family years of delay, tens of thousands of dollars, or even your chance to challenge what happened. Executors, administrators, and beneficiaries often assume probate is just paperwork, then discover too late that a missed deadline or a casual decision has permanent consequences. All of this usually happens while people are grieving and juggling difficult family dynamics.
Many families start out believing their estate is “simple,” only to find themselves in a contested probate, a fight over a power of attorney, or a dispute about who should inherit real property. Missteps with notices, filings, or asset handling can turn a routine file into full-blown litigation in New York Surrogate’s Court. The court will expect you to follow formal rules even if you have never been near a courtroom before.
At Novick, Graffeo & Choi, P.C., our legal team has spent more than 30 years focused on New York estate law and estate litigation. We are often called in after common probate mistakes have already created serious problems, delayed distributions, or put inheritances at risk. In this guide, we share the patterns we see again and again in New York cases, and how you can recognize and avoid those same mistakes in your own matter.
Why Probate Mistakes Are So Costly
New York probate is a formal court process, not an administrative checklist. If the person who died left a will, the will typically goes through probate in the Surrogate’s Court in the county where they lived. If there is no will, the court usually opens an administration proceeding instead. In both situations, the court appoints someone as fiduciary, either an executor named in the will or an administrator under New York’s priority rules, and that person must follow specific court procedures.
Those procedures are not suggestions. The Surrogate’s Court expects petitions, notices, and supporting documents to be complete and accurate, and expects fiduciaries to know their obligations. The court does not function as your legal advisor. Clerks can provide forms and basic information, but they cannot tell you what legal strategy to use, whether someone should be included, or how to handle a likely objection. If a mistake affects someone’s rights, the court may have limited ability, or limited willingness, to fix it later.
Because Novick, Graffeo & Choi, P.C. has handled New York probate and administration matters for decades, including high-profile and heavily litigated estates, we see how avoidable errors ripple through a case. A petition that leaves out a distributee can stall the proceeding for months. A fiduciary who distributes assets informally may later face a contested accounting and potential personal liability. These are not theoretical risks. They are regular patterns in Surrogate’s Courts throughout New York, and they are why small decisions early in the process matter so much.
Mistake 1: Treating New York Probate Like Simple Paperwork
One of the most common probate mistakes in New York is assuming that probate is mostly about filling out forms and that the court will guide you through each step. Families often download a petition, complete it based on their understanding of the family tree, and submit it without realizing that a single omission can derail the entire case. This “it is just paperwork” mindset ignores how precise Surrogate’s Court procedures really are.
In a standard probate petition, you must list all distributees, not just the people named in the will. Distributees are those who would inherit under New York intestacy law if there were no will. If you miss a half-sibling who lives in another state, or a child from a prior relationship, the court may refuse to move forward until that person is located and properly served. In an administration petition, a similar error can result in competing applications or challenges to your authority to act as administrator.
We also frequently see incorrect use of proceedings. For example, someone may try to open a “small estate” proceeding when the asset structure does not qualify, or start administration when there is, in fact, a will that later surfaces. Defects in waivers and consents, incomplete asset descriptions, and failure to provide the original will are all classic stumbling blocks. The end result is delay, additional expense, and often increased suspicion among family members who may already be uneasy about the process.
At Novick, Graffeo & Choi, P.C., we do not treat these filings as routine forms. Our team reviews the family structure, prior planning documents, and asset profile to select the right type of proceeding and ensure all necessary parties and facts are properly set out. That kind of front-end work may feel tedious, but it is often what prevents a simple petition from becoming the starting point for a contested and expensive probate fight in New York Surrogate’s Court.
Mistake 2: Missing Critical Surrogate’s Court Deadlines And Notices
Deadlines and notices are where many New York probate cases go off track. Surrogate’s Court practice uses citations to bring interested parties before the court. When someone receives a citation, it is not a courtesy note, it is a formal notice of a hearing and a potential last chance to object. Beneficiaries and distributees sometimes set citations aside, assuming they can raise concerns later if something seems wrong. That assumption can cost them their rights.
In a probate proceeding, there is a limited window of time to file objections to the validity of a will. Once the court issues a decree admitting the will to probate, reversing that outcome often requires a much higher showing and can be significantly more difficult. Similarly, if a fiduciary receives a discovery demand or is ordered to provide an accounting by a certain date and does not comply, the court can impose sanctions, limit their defenses, or in serious circumstances remove them.
We regularly see situations where a beneficiary has real concerns about undue influence or capacity but does not seek counsel until after key deadlines have passed. At that point, there may still be options, such as moving to open a decree or challenging specific transactions, but the path is narrower and the litigation more complex and costly. Opposing parties may argue that any objections are untimely, and courts often give considerable weight to the fact that someone did not act when given formal notice.
Because Novick, Graffeo & Choi, P.C. is frequently involved in contested and high-stakes probate matters, we know that these early procedural steps can determine the entire trajectory of a case. We pay close attention to dates on citations, orders, and returnable motions, and we advise clients on when silence can be treated as consent. For individual heirs and executors, the safest approach is to treat every court paper, especially citations and orders, as urgent until a knowledgeable New York estate litigator reviews them.
Mistake 3: Mishandling Assets And Fiduciary Duties
Once the court appoints an executor or administrator in New York, that person becomes a fiduciary. This role carries legal duties to the estate and to all beneficiaries, not just to those the fiduciary feels close to. A fiduciary must locate, inventory, safeguard, and ultimately account for estate assets. They must also pay valid debts and expenses before distributing what remains. Treating estate assets informally is a fast way to create serious personal liability.
Common missteps include distributing assets before confirming and paying debts and taxes, allowing family members to occupy or use estate property rent free without documentation, or using estate funds for personal expenses with the intent to “square it up later.” On paper, any of these can look like self-dealing or misappropriation. In Surrogate’s Court, beneficiaries can petition for an accounting. When that happens, every check, transfer, and property decision can come under scrutiny. If the court finds that the fiduciary’s actions caused loss or unfairness, it can impose a surcharge, which effectively requires the fiduciary to repay the estate out of their own pocket.
Real estate is a frequent flashpoint. Leaving a New York co-op or house uninsured, failing to secure it, or letting taxes lapse can quickly erode estate value. Allowing one sibling to live in the property without rent, while others receive nothing, often leads to claims of favoritism or breach of duty. Investment accounts also raise issues when a fiduciary changes investment strategies without proper authority or fails to preserve records demonstrating that decisions were reasonable in the circumstances.
At Novick, Graffeo & Choi, P.C., our boutique approach means we look closely at the specific mix of assets in each estate and craft a plan to protect them. In estates with significant real estate, closely held business interests, or multiple investment accounts, this often includes clear documentation of decisions, timely insurance coverage, and, when appropriate, court approval for major transactions. By treating fiduciary duties as a structured responsibility rather than a family favor, executors and administrators greatly reduce the risk of later litigation and personal financial exposure.
Mistake 4: Overlooking Suspicious Powers Of Attorney And Lifetime Transfers
A large share of probate litigation in New York revolves around what happened before the person died. Powers of attorney and lifetime transfers can quietly move assets out of the estate, sometimes in ways that do not match the person’s long-term intentions. Families may initially ignore these transactions, assuming that if checks or deeds were signed, they must be valid. Later, when they realize how much property is missing from the estate, they discover that the best time to act has passed.
A power of attorney allows an agent to act for the principal while they are alive. This authority can include moving funds between accounts, changing beneficiaries on some assets, or transferring real property. If the person was frail, isolated, or cognitively impaired when the power of attorney was signed or used, questions often arise about capacity and undue influence. Red flags include large transfers to the agent that deviate sharply from past patterns, changes made very near the end of life, or situations where one person suddenly gains control to the exclusion of long-standing advisors or family members.
If no one examines these transactions until after the decedent’s death, documents may be harder to obtain, memories may have faded, and witnesses may be less available. The estate or individual beneficiaries may still be able to challenge suspect transfers in Surrogate’s Court, but building the case usually requires more time and cost. Banks or other institutions might also have changed their internal records or positions, complicating efforts to unwind the transfers.
Novick, Graffeo & Choi, P.C. devotes a significant portion of its work to contested powers of attorney and related lifetime transfer disputes. We know what kinds of records and testimony matter, and when aggressive action makes sense. For families already in probate, an early legal review of pre-death account activity, property transfers, and changes to ownership can uncover issues before the estate is closed. Addressing suspicious transactions proactively, rather than assuming everything done under a power of attorney was proper, is one of the most effective ways to prevent avoidable loss.
Mistake 5: Ignoring Spousal Rights And Other Statutory Claims
Another recurring probate mistake in New York is overlooking the rights of a surviving spouse or treating the will as the final word without checking statutory protections. New York gives many surviving spouses an elective share, which can entitle them to a portion of the estate even if the will leaves them less, or nothing at all. There are also rights to certain exempt property and support allowances that can affect how assets are allocated and which assets must be considered.
When families or fiduciaries distribute estate assets according to the will alone, without considering these rights, they may set up future challenges. A spouse who initially seemed agreeable can later elect against the will within the permitted timeframe. This can force sales of property or require other beneficiaries to return funds. Even if the spouse never objects, the fiduciary may be criticized for failing to inform the spouse of their options or for not reserving assets pending the expiration of the election period.
Other statutory claims can also be overlooked. Certain retirement accounts, jointly held property, or pay-on-death designations may factor into elective share calculations or become contentious when they appear to bypass the estate in a way that conflicts with expectations. Disputes over exempt property, such as household items or vehicles, sometimes cause conflict out of proportion to their monetary value, especially when multiple people feel entitled to the same items or have strong emotional attachments.
Because Novick, Graffeo & Choi, P.C. regularly handles spousal rights disputes and related estate litigation, we treat elective share and statutory claims as integral parts of the probate landscape, not afterthoughts. When we evaluate an estate, we look beyond the text of the will to identify any potential spousal or statutory claims and factor those into our strategy. Executors and beneficiaries avoid many later surprises by understanding at the outset that New York law provides these rights, regardless of what the will says.
Mistake 6: Assuming Family Agreements Can Replace Court Orders
In an effort to keep peace, families often decide to handle matters informally. They might agree that one sibling will take a larger share of personal property while another gets more cash, or that everyone trusts the executor so there is no need for a formal accounting. While these agreements may seem practical, they do not replace the fiduciary’s legal obligations to the court and to all interested parties.
New York Surrogate’s Court can hold fiduciaries to account even when most of the family thinks everything is fine. If one beneficiary later changes their mind, or a previously quiet distributee comes forward, the executor or administrator may be asked to justify every informal arrangement. Without proper documentation, releases, or court approval, the fiduciary may struggle to prove that everyone understood and agreed. What began as a private compromise can then be framed as undisclosed favoritism or coercion.
Side agreements about real property are especially risky. Letting one person live in a house indefinitely, with a vague promise to “work it out later,” can make it difficult to sell or refinance the property when needed. Similarly, handing out specific items or funds based on verbal understandings, instead of written agreements or court-sanctioned settlements, creates room for disagreement about what exactly was promised and whether choices were fair to all beneficiaries.
At Novick, Graffeo & Choi, P.C., we value practical solutions, but we also know how quickly informal deals can collapse. Our boutique approach often involves structuring settlements and agreements that are reduced to writing, sometimes submitted to the court for approval, and backed by appropriate releases. This approach protects fiduciaries and beneficiaries alike, preserving the benefits of compromise while reducing the risk that someone will later say, “I never agreed to that.”
How To Protect Yourself From Common Probate Mistakes In New York
The encouraging news is that most of the common probate mistakes in New York are visible early if you know what to look for. Executors, administrators, and beneficiaries can significantly reduce risk by approaching the estate as a legal process with clear rules instead of an informal family project. Small, informed steps at the beginning often prevent the need for emergency litigation later on.
Steps that help protect your interests in New York probate and administration matters include:
- Gather key documents immediately. Locate the original will, any codicils, prior wills if available, powers of attorney, trust documents, and recent account statements. These materials help identify potential conflicts, suspicious transfers, and the correct type of proceeding.
- Map the full family tree, not just the people named in the will. Make a precise list of all distributees under New York law, including half-siblings and children from prior relationships, so no one is inadvertently left out of the petition.
- Secure and inventory assets early. Change locks if appropriate, confirm insurance coverage, document property with photos and lists, and keep estate funds in dedicated estate accounts, not mixed with personal funds.
- Be cautious with waivers, consents, and settlements. Do not sign away rights or agree to distributions you do not fully understand. Once you consent to probate or an accounting, unwinding that consent can be challenging and sometimes impossible.
- Act quickly if you see warning signs. Red flags include rushed changes to estate plans, large transfers under a power of attorney, refusal to share information, or pressure to “just sign” something. These are times to get legal advice, not to look the other way.
In our practice at Novick, Graffeo & Choi, P.C., we are often brought in after a deadline has been missed, an asset has been mishandled, or a family agreement has fallen apart. We can work to address these situations, but it almost always requires more time, expense, and stress than if we had been involved earlier. In some cases, opportunities are simply lost. For beneficiaries and fiduciaries who recognize that their situation may be heading toward conflict, a focused review by an experienced New York estate litigation firm can make a significant difference. In appropriate estate litigation matters, our firm may also be able to consider contingency fee arrangements, which can give those with limited resources a path to pursue their claims.
Talk To A New York Estate Litigation Team Before Small Problems Become Big Ones
Probate in New York does not give endless second chances. Once a will is admitted, a decree is entered, or assets are distributed without proper protection, options can narrow quickly. The common probate mistakes discussed here are not hypothetical; they are the same missteps we see again and again in real cases across New York Surrogate’s Courts.
If you are serving as an executor or administrator, or if you are a beneficiary or surviving spouse concerned about how an estate is being handled, you do not have to navigate these risks alone. The legal team at Novick, Graffeo & Choi, P.C. has devoted more than three decades to New York estate law and estate litigation, and we understand how to spot problems early, protect your rights, and structure solutions that hold up in court. A conversation now can often prevent much harder conversations later.
Call (631) 547-0300">(631) 547-0300 to discuss your New York probate or estate dispute.