July 11, 2015

Surrogate's Court: Important Documents & Time Frames

By far the most important documents in any Surrogate's Court proceeding are the Petition, Answer/Objections and Account, documents which are collectively referred to as "Pleadings."

Petition - A Petition is the first documents filed in any Surrogate's Court proceeding. It is the document which tells the court what the person filing the Petition, referred to as the Petitioner, is asking the court to do (typically to appoint the Petitioner as the Executor or Administrator of a deceased person's Will/Estate). The Petition is always the first document filed with the Surrogate's Court, and the filing of the Petition starts/begins the Surrogate's Court proceeding.

Answer/Objections - Answer/Objections are documents filed after, and in response to, the Petition in which a person, referred to as the Respondent, states why he/she thinks that the Petition should not be granted. If an Answer or Objections are filed within the time frame set by the court, the court will hold a conference with the Petitioner and Respondent, during which time both the Petitioner and Respondent will have the opportunity to express to the Court's staff why the Petition should/should not be granted, and, if all outstanding issues cannot be resolved at this conference, the court will take note that the proceeding is contested and the matters will slowly proceed to the point of trial. Note that unless the Court provides otherwise, Answers/Objections must be served upon the Petitioner, and any known Respondent(s), on or before the first Court hearing.

Surrogate's Court: Where Should I File My Petition

Any Surrogate's Court within the State of New York has "jurisdiction over the estate of a decedent who was a domociliary of New York at the time of the person's death." A person is deemed to be a domociliary of New York when such person has a "fixed, permanent and principal home in New York to which the person, whenever temporarily located, always intends to return" - in short, the person must have a home in New York and consider New York his/her permanent home.

Despite that every Surrogate's Court in the State of New York has the power/jurisdiction to make a ruling on any Petition filed with it in regard to a deceased person's estate, only the Surrogate's Court located in the county where the deceased person lived has proper venue, and, in order to avoid a long and costly delay, always file any petition relating to a deceased person's estate with the Surrogate's Court located in the deceased person's county of domocile.

Surrogate's Court: What is the Surrogate's Court

According to statute/law, the Surrogate's Court is the court authorized to "exercise general jurisdiction in law and equity to administer justice in all matters relating to estates and the affairs of decedents." Another, simpler, way of  thinking of the Surrogate's Court is to think of it as the "dead people" Court, as nearly all client contact with the Surrogate's Court is in relation to the estate of a deceased person.

The Surrogate's Court is the court where people file legal papers, called petitions, seeking to be appointed as Executor of a deceased person's estate (when the person died leaving a Will) or seeking to be appointed as Administrator of a deceased person's estate (when the person died without leaving a Will). Note that besides these petitions, the Surrogate's Court will also take petitions relating to trusts, trust management, estate management and the need/desirability of appointing a guardian to manage the financial and health care affairs of an incapacitated person.

July 7, 2015

Surrogate's Court: Definitions

When trying to find the definition of a word or phrase used in a Surrogate's Court proceeding, it's always best to start on page 1. By far the most important statues/laws applicable to Surrogate's Court proceedings are the Surrogate's Court Procedure Act, or "SCPA," and the Estates, Powers and Trusts Law, or "EPTL," both of which contain a definitions section in Article 1 of the statue/law.

While, especially in legal proceedings, it's always a good idea to look-up the definition of a word which you do not understand, some on the most commonly used words/phrases in Surrogate's Court proceedings, other than the words which we all know and understand, include:

   1) Administrator - Any person to whom letters of administration have been issued (note that an Administrator is essentially the same as an Executor, except that an Administrator is the person who is in charge of a deceased persons estate when the deceased person did not have a Will).

   2) Distributee - Any person entitled to take or share in the property of a decedent under the statues governing descent and distribution (or, in other words, any person who would be entitled to a deceased persons property if the deceased person died without leaving a Will). Persons typically thought of as being the "heirs" or "next of kin"of a decedent are, more often than not, distributees of the decedent's estate.

   3) Estate - Depending upon the context, "estate" may mean . . . the aggregate of property which a person owns.

   4) Executor - Any person to whom letters testamentary have been issued (person who is in charge of a deceased person's estate when the deceased person died leaving a Will).

   5) Intestate - A person who dies without leaving a valid Will.

   6) Issue - Unless a contrary intention is indicated: (1) Issue are the descendants in any degree from a common ancestor (typically: grandparents - parents - children - grandchildren - great grandchildren).

   7) Person Interested - Any person entitled or allegedly entitled to share as beneficiary in the estate.

   8) Petition - A verified application . . . requesting action upon a matter or relief provided for in the Estates, Powers and Trusts Law (EPLT) or in the Surrogate's Court Procedure Act (SCPA). **Typical Petitions include a petition for the probate of a Will and a Petition seeking letters of Administration for the estate of a person who dies without a Will**

    9) Process - Citation, order to show cause, subpoena and any other mandate of the Surrogate's Court by which jurisdiction is obtained over a party.

   10) Respondent - Every party to a proceeding except a petitioner.

   11) Testamentary Trust - A trust created by Will.

Surrogate's Court: What is a Citation?

If you have been served with a Citation, you are a party to a Surrogate's Court proceeding. The Surrogate's Court is the court which has jurisdiction over a deceased person's financial affirs and is the Court which a person must petition when seeking to either admit a Will to probate, is seeking to be appointed as the Administrator of a deceased persons Estate (when a person dies without leaving a Will) and the Court which has jurisdiction to hear matters relating to Trusts and Guardianships.

Therefore, if you have been served with a Citation, you are being put on notice that you have an interest, typically a pecuniary or "money" interest, in a Surrogate's Court proceeding relating to a dead person's Estate, Trust or other property.

As a rule, you should always appear, or show-up, at the date, time and Court which appear in the Citation, as this is the time and place where you will be advised of your interest in the proceeding, typically your share in a deceased person's Estate or Trust. In my experience, this is the closest that you will ever come to a "reading of the Will" of the dead person, so it's always suggested that you take the time to appear on the Citation return date.