What Is a Surrogate’s Court Proceeding in New York? 

There are many different types of proceedings which take place in the Surrogate’s Court in New York. Among the most commonly recognized are:

Why Proper Estate Planning Matters

The New York Probate Lawyer Blog has published many articles discussing issues relating to New York estate plans. These articles included matters involving:

Why Domicile Can Determine Whether a Surviving Spouse Inherits

After the death of a spouse, many people assume that a surviving husband or wife automatically inherits a portion of the estate. However, under New York law, a surviving spouse’s inheritance rights can depend on several factors, including where the decedent was legally domiciled at the time of death.

Inheriting an estate in New York can be very confusing. The rights of beneficiaries depend upon many different factors. For example, if a decedent dies and leaves a Last Will and Testament, the initial beneficiaries may appear to be the persons who are designated in the Will. However, there may be complicating factors. A Will may name as a beneficiary the Trustee of a revocable or irrevocable inter–vivos trust which was created outside of the Will. Thus, the ultimate beneficiaries would be the persons named as beneficiaries in the Trust document. 

The Necessity of Having an Executor or Administrator to Handle a Decedent’s Affairs

Following a person’s death, one of the initial inquiries is whether a decedent needs an estate fiduciary to deal with post-death issues.

The simple view of this concern relates to whether a decedent has any assets such as:

This Blog has discussed how a Last Will controls assets that are owned by a decedent in his name alone at death. A bank account or real estate bearing only a decedent’s name is disposed of according to the terms of a Will. Joint assets or assets which name a pay on death beneficiary are not controlled by a Will but pass directly to the joint owner or beneficiary upon death. If there is no Will, assets solely in a decedent’s name are controlled by the New York laws of intestacy which direct which heirs are to receive the assets. Assuming, however, that there is a Will, a Trust may come into play regarding the disposition of an asset.

If an asset is controlled by a Will, there may be a provision in the Will whereby the estate asset is given to a Trustee of a Trust whose terms and provisions are spelled out in the Will itself. This is known as a Testamentary Trust. A Testamentary Trust may be created in a Will for a number of purposes. Most commonly, such Trusts are utilized to hold funds for minor children until they reach certain ages or for specific purposes such as education. The Trustee designated in a Will is appointed by the Surrogate’s Court just like an Executor of the Will. The Trustee is given certain powers and authority in the Will which must be adhered to. Testamentary Trusts can also be utilized for estate planning or to administer funds for persons under a disability. These are known as Supplemental Needs Trusts. A Charitable Trust can be created to benefit charities. The terms of a Testamentary Trust include details as to Trust asset dispositions, as well as the termination or final payment of Trust funds. There are very complex rules which provide that Trusts cannot continue in perpetuity.

One of the primary functions in planning an estate is to avoid issues which may arise and be difficult to solve once a person is deceased.  An estate plan can include documents such as a Last Will, Living Will, Living Trust, Power of Attorney and Health Care Proxy.  Creating these papers may forestall post-death problems.  For example, here are a few areas of concern:

Kinship– After a person dies either a Last Will needs to be probated or an intestate administration proceeding commenced.  In both instances it is absolutely necessary to know the identity and whereabouts of a decedent’s next of kin.  This information is essential for all probate and intestate petitions.  A person’s next of kin is not always easy to determine.  In many cases there are close relatives such as a spouse, children, parents or brothers and sisters.  However, over the more than 40 years of practicing in the trusts and estates areas I have encountered many estates where a decedent’s heirs (called “distributees”) are either not known or only partially known.  For example, a person may prepare a Last Will and leave their estate to a friend or a charity.  As it turns out, the decedent’s next of kin are unknown to his associates or executor or are distant relatives who live in various countries or states and who have had no contact with the decedent for decades.  The need to perform a kinship search or engage in a kinship hearing can be costly and delay the settlement of an estate for many years.  The bottom line is for a person to provide complete kinship information at the time the estate plan is created so that this

Incidentally, in situations where a person dies intestate without a Last Will, all assets owned in the name of the decedent are distributed according to the statutory designated next of kin.  At least when a Last Will is created, a person can specifically choose the beneficiaries who are intended to receive estate funds.

Choosing beneficiaries is not always easy depending upon an individuals circumstances.  A person preparing an estate plan may want to include or exclude various individuals.  In New York, there is no requirement that children be left an inheritance.  Some or all children can be entirely disinherited.  Of course, in these situations careful planning is needed since a disinherited child may feel that a parent was unduly influenced or lacked testamentary capacity which led to what they believe was unfair treatment.  Many times a Will Contest results due to a close family member not receiving the inheritance they have expected.

The touchstone provision of Guardianship is a determination that a person is incapacitated and requires the appointment to provide for his personal needs and/or property management.  This basic pronouncement is found in section 81.02 of the MHL which is entitled “Power to appoint a guardian of the person and/or property; standard for appointment”.  Incapacity, which must be shown by clear and convincing evidence, exists when a person is likely to suffer harm when, according to the statute, a person cannot handle his property management or personal affairs and cannot appreciate and understand the consequences and nature of such disability.

As can be seen from the language of the statute, demonstrating that a person requires a guardian because they are incapacitated is not a clear, black or white issue.  Capacity is based upon a person’s functional ability- how does the person handle activities of daily living such as personal hygiene, shopping, taking care of finances or medical needs, dressing oneself, paying bills, etc.

In the event there is no Will, a proceeding for Letters of Administration must be initiated.  The persons who inherit an intestate estate and who are entitled to be appointed as Administrators are determined strictly in accordance with the New York intestacy laws.

When a Will is filed for probate, one of the initial inquiries is whether the document was executed in accordance with the statutory requirements.  The New York Probate Lawyer Blog has published many articles concerning probate and Surrogate’s Court proceedings.  In this regard Surrogate’s Court Procedure Act section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the basic requirements for the validity of a Will.  For example, a Will needs to be in writing and have two attesting witnesses.  The person creating the Will, the testator, must sign the document at the end of the paper.  In the event that a Will is not created in strict conformity with the estate law, then a Court can invalidate it and a decedent’s estate is then generally subject to the intestacy laws.

Even at this early stage, a decedent’s next of kin and named beneficiaries are anxious to know about the steps being taken to have a fiduciary appointed to handle estate affairs and also to learn about estate assets.  The persons who have the initial opportunity to move forward are those individuals designated as Executors or who have a priority right under the New York estate laws to be appointed as Administrators.

It is very common for parties who have an interest in an estate to contact me and relate that they are not receiving any information from a potential Executor or Administrator as to their progress in obtaining Court appointment.  Unfortunately, in the regular course of events, a named Executor or potential Administrator is not required to report their progress.  If there is an inordinate delay, say the filing of a Will with the Surrogate’s Court, a proceeding can be filed with the Court to require individuals who possess an original Will to file it in the Court.  Also, there may be alternate person’s who would have the statutory right to commence a proceeding for Letters of Administration or Letters Testamentary.