Probate and estate bonds in New York
New York runs estates through the Surrogate's Court, one in each county, and the bond rules sit in the Surrogate's Court Procedure Act rather than a probate code. Two features matter most in practice: the amount formula reaches eighteen months of rents from real property, and an executor who lives outside the state is entitled to letters only on giving a bond where an objection to their non-domiciliary status is established.
Reviewed by Dustin SanVido, Estates Program Lead
When New York requires a bond
- Letters of administration are sought on an intestate estate.
- The will is silent on bond, or names a fiduciary the court is not satisfied to let serve unsecured.
- An objection is established that the person named as executor is a non-domiciliary, under SCPA § 710(2).
- The court finds good reason to require or increase security under SCPA § 801(1)(e).
- The fiduciary is a testamentary trustee, or an executor who must hold property for someone else. Section 806 requires a bond in that case unless the will provides otherwise.
How New York sets the amount
SCPA § 801(1)(a) fixes the bond for an executor, administrator, administrator c.t.a. or d.b.n., or temporary administrator at not less than the sum of three figures: the value of all personal property the fiduciary will receive, the estimated gross rents from real property the fiduciary will receive over eighteen months, and the probable recovery in any cause of action the fiduciary will prosecute. Note that this is a floor, not a ceiling — the opposite posture to California's cap. Where a successor fiduciary is appointed, the court also weighs how much of the estate has already been administered. Section 801(1)(e) lets the court increase or decrease the bond at any time when good reason appears.
Can the bond be waived?
For administrators, SCPA § 805 lets the court dispense with the bond or fix it at a reduced sum where the prospective administrator is entitled to the whole estate, or where all distributees consent — in which case the amount need only adequately protect creditors. A will that excuses an executor from bond is ordinarily honoured, but it does not foreclose the non-domiciliary question below.
Out-of-state executors in New York
Section 710 deals with this in subdivisions that are worth keeping apart. Under § 710(2), a person named as executor who is not required by the will to give a bond is entitled to letters on giving a bond where an objection has been established that they are a non-domiciliary. Section 710(3) covers the fiduciary who moves out of the state after letters have issued. Section 710(4) adds that estate property may not be removed from New York without the court's approval, and a bond if the court requires one. On whether § 710(2) overrides a waiver in the will, one Surrogate's Court decision has read it that way — Matter of Nussbaum, 26 Misc 3d 223 (Sur Ct, Bronx County 2009), 2009 NY Slip Op 29425 — with the court describing the subdivision as arguably mandatory and noting it found no case interpreting that version of it. That is a single decision rather than settled law, so an out-of-state executor holding a will that waives bond should treat the question as open and raise it with the county's Surrogate's Court.
Eighteen months of rents
The bond does not reach the capital value of real property at all. It reaches eighteen months of estimated gross rents, which is a different quantity entirely: on a Brooklyn brownstone with three tenanted units that component alone can run into six figures, and it is easy to miss when estimating the bond from the estate's balance sheet. Watch the window, too. Section 801(1)(b) uses three years of rents and income for a guardian of an infant's property, so the eighteen-month figure does not carry across from an estate file to a guardianship one.
Estates small enough to skip probate
SCPA § 801(1)(a) dispenses with the bond where the assets to be administered do not exceed the small-estate threshold in SCPA § 1301(1), which is $50,000 of personal property. Confirm the figure with the Surrogate's Court for the county before relying on it, since thresholds are amended from time to time.
Get bonded in New York
Tell us the bond amount the court set and we will place it. Most New York files are issued the same day once the application is in.
New York probate bond questions
Does New York require a probate bond?
- The Surrogate's Court requires one for letters of administration on an intestate estate, where the will is silent on bond, or where the court is not satisfied to let the named fiduciary serve unsecured. SCPA section 801(1)(e) also lets the court require or increase security at any time when good reason appears.
How is a New York probate bond amount calculated?
- SCPA section 801(1)(a) fixes the bond at not less than the sum of the value of all personal property the fiduciary will receive, the estimated gross rents from real property over eighteen months, and the probable recovery in any cause of action the fiduciary will prosecute. Note that it sets a floor rather than a ceiling. Section 801(1)(e) then lets the court increase or decrease the bond when good reason appears.
Why does New York count eighteen months of rents?
- SCPA section 801(1)(a) does not reach the capital value of real property at all — it counts eighteen months of estimated gross rents instead. On a tenanted building that component alone can run into six figures, and it is easy to miss when estimating the bond from the estate's balance sheet. Section 801(1)(b) uses three years of rents and income for a guardian of an infant's property, so the eighteen-month figure does not carry across from an estate file.
Can an out-of-state executor be bonded even if the will waives it?
- Treat it as an open question rather than a settled one. Under SCPA section 710(2), a person named as executor who is not required by the will to give a bond is entitled to letters on giving a bond where an objection has been established that they are a non-domiciliary. One Surrogate's Court decision has read that as operating despite a waiver in the will — Matter of Nussbaum, 26 Misc 3d 223 (Sur Ct, Bronx County 2009) — where the court called the subdivision arguably mandatory and noted it found no case interpreting that version. One decision is not settled law, so raise it with the county's Surrogate's Court rather than assuming either answer.
Can the Surrogate's Court dispense with the bond for an administrator?
- SCPA section 805(1) lets the court dispense with the bond, or fix it at a reduced sum, where the prospective administrator is entitled to the whole estate or where all interested persons consent. In that case the amount need only adequately protect creditors. Note that section 806 runs the other way: it requires a bond from a testamentary trustee, or from an executor who must hold property for someone else, unless the will provides otherwise.
Sources
Statutory references on this page link to the primary source. Court practice varies by county and statutes are amended, so confirm the current rule with the court handling your file before relying on it.
- N.Y. SCPA § 801 (amount of bond)(opens in a new tab)
- N.Y. SCPA art. 8 (bonds generally)(opens in a new tab)
- N.Y. SCPA § 710 (non-domiciliary fiduciaries)(opens in a new tab)
- N.Y. SCPA § 805 (dispensing with an administrator's bond)(opens in a new tab)
- N.Y. SCPA § 806 (testamentary trustees)(opens in a new tab)
- N.Y. SCPA § 1301 (small estate threshold)(opens in a new tab)
- Matter of Nussbaum, 26 Misc 3d 223 (Sur Ct, Bronx County 2009)(opens in a new tab)
Other states
- Probate bonds in California — Bond is the default unless the will or every beneficiary waives it, and the court can still require one for good cause.
- Probate bonds in Texas — A will can dispense with the bond where the court finds the executor qualified, and the amount is built from personal property rather than land.
- Probate bonds in Arizona — A bond is required unless the will or every heir waives it, and real estate counts toward the amount unless the letters restrict sales to court confirmation.
- Probate bonds in Michigan — No bond is required in an informal proceeding, until a beneficiary or creditor over the threshold files a written demand — which needs no court finding.
- Probate bonds in Pennsylvania — A bond is required before letters issue, and the section 3174 exemptions are conditioned on the personal representative living in Pennsylvania.
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About this page
Published for educational purposes from publicly available statutes and court sources, each of which is cited and linked above. It is not legal advice, and reading it creates no solicitor-client or attorney-client relationship. Statutes are amended and county practice varies, so a lawyer should be retained for any legal matter concerning an estate, and the law of New York and of the court handling the file governs. Bond amounts, terms, and premiums are set by the court and the surety on each file. Call us on 1-877-213-4545 if you need the requirement confirmed for a file in front of you.