Ii. Administration Proceedings

II. ADMINISTRATION PROCEEDINGS

ADMINISTRATION PROCEEDINGS

IN SURROGATE’S COURT

LORI J. PERLMAN, Esq. 9 Victoria Place Princeton Junction, NJ 08550

47 ADMINISTRATION PROCEEDINGS IN SURROGATE’S COURT

1. Administration Proceedings

A. What Is Intestate Administration?...... 3

B. Who Are Decedent’s Distributees? ...... 4 1. Distributees ...... 5 2. Persons Disqualified as Distributees ...... 11 a) Surviving Spouse ...... 12 b) Parent ...... 14 c) Children...... 15 3. Identifying and Locating Distributees ...... 15 a) Identifying Distributees ...... 16 b) Locating Distributees ...... 16 c) Affidavit of Due Diligence ...... 17 d) Additional (and online) resource...... 18 e) Kinship Hearings ...... 19

C. Serving as Administrator ...... 21 1. Eligibility and Priority for Letters ...... 21 2. Ineligible Persons ...... 24 3. Method of Qualifying as Administrator ...... 25 4. Bond ...... 25

D. Where to Commence an Administration Proceeding: Jurisdiction and Venue ...... 26

E. How to Commence an Administration Proceeding...... 27 1. The Petition for Letters of Administration ...... 28 2. Notice of Application for Letters of Administration ...... 33 3. Affidavit of Heirship ...... 34 4. Filing fee ...... 35 5. Completing Jurisdiction: Citation or Renunciation and waiver of service of process ...... 35 6. Concluding the Proceeding: The Decree...... 38

II. Alternate Forms of Administration

A. Small Estate Administration (a/k/a Voluntary Administration) ...... 40

1. What is Voluntary Administration? ...... 40 2. Who May Serve as Administrator? ...... 40 3. How to Commence a Voluntary Administration Proceeding ...... 41 4. Administering the Estate ...... 42 ii

48 5. Completing Voluntary Administration ...... 43

B. Temporary Administration ...... 44 1. Petition ...... 44 2. Process ...... 44 3. Immediate Letters for Absentees ...... 45 4. Powers of the Temporary Administrator...... 45 5. Accounting of the Temporary Administrator ...... 45

C. Limited and Restrictive Letters ...... 46 1. General Limitations on Fiduciary’s Powers ...... 46 2. Limited Letters where Conflict of Interest Prevents Fiduciary from Acting ...... 47 4. Limited Letters in Other Situations ...... 48 4. Lifting the Restriction ...... 48

FORMS:

NOTE: Most forms, including a petition for letters of administration and ancillary documents, can be downloaded from the New York State Unified Courts System website at http://www.courts.state.ny.us. You will find the appropriate forms under Administration (petitions and ancillary documents, and a very useful checklist); Small Estate (Petitions, ancillary documents and a checklist) and Miscellaneous (attorney certification of not change from official forms page).

The complete set of official forms for the Surrogate=s Courts (on Hot Docs) can be downloaded for a fee from the Trusts and Estates Section page of the New York State Bar Association at http://www.nysba.org

Please note the following uniform rule concerning submission of electronically produced forms.

22 NYCRR § 207.4: Papers filed in court; clerks file number; official forms. (b) The forms set forth in Chapter VII of subtitle D of this title (22 NYCRR), designated “Surrogate Court Forms”, and including forms for the Surrogates Court and adoption forms of the Family Court and Surrogates Court, shall be the official forms of the court and shall be accepted for filing pursuant to SCPA 106. Forms produced on computers or word processors shall be accepted for filing, provided (1) the text used shall be the same as that contained in the official forms and (2) the attorney or party preparing such form shall certify at the end thereof that the form is the same as the official form and that the substantive text has not been altered. Persons submitting such forms may leave out instructions (contained in brackets) and optional words or phrases that have not been selected or are irrelevant. Submitting a form to be an official form, but upon which the text has been intentionally altered to change the substance or meaning thereof, may be regarded as an attempt to mislead the court. 2

49 ADMINISTRATION PROCEEDINGS IN SURROGATE’S COURT *

I. INTESTATE ADMINISTRATION

A. What Is Intestate Administration?

Intestate Administration is a procedure for collecting and distributing the assets of an individual who died without a will or without a valid will and who left personal property greater in value than $30,000, or whose estate has a cause of action for wrongful death or personal injury to the decedent regardless of the value of the estate.** (If a person dies without a Will, real property passes by operation of law to the decedent’s distributees – see discussion on the following page). It is generally advisable to review the assets of the estate in terms of real vs. personal property and testamentary vs. non-testamentary assets in order to determine whether an administration proceeding is necessary.

In general, a person interested in the estate (including a creditor of the estate) petitions the Court to appoint as Administrator an individual who meets the statutory qualifications for that office. If the petition is granted, the Court issues Letters of Administration authorizing the individual to collect the decedent’s assets and charging the individual with responsibility for paying decedent’s debts and the expenses of administering the decedent’s estate, and thereafter distributing the remaining assets to the decedent’s distributees.

Where a creditor seeks issuance of letters of administration to the Public Administrator, if you are representing a family member who is seeking letters it is advisable to prepare the administration petition and accompanying papers and file them at or before the return date of the creditor’s petition, thus enabling you to report to the Court that a proceeding to appoint the proper individual as fiduciary has been commenced.

Letters of Administration may also be sought where a purported will of a decedent is filed in Court but no proceeding for probate has been commenced within a reasonable amount of time, or where a proceeding was commenced but probate is not being diligently pursued. SCPA 1001(9). If there is a will on file with the court, the court may be reluctant to entertain a proceeding for Letters of Administration until the issue of the validity of the Will is resolved. This often requires a “reverse probate proceeding” in which the potential administrator seeks to establish that the Will on file should be denied probate.

* This outline is not intended to guide the practitioner in contested administration proceedings.

** If the decedent has less than $30,000 in personal property and no cause of action for wrongful death or personal injury, and no real property, consider whether voluntary administration is appropriate. See Section II, A, infra.

50 Note: If an individual dies intestate leaving only real property, judicial administration is generally not required because real property passes by operation of law to the decedent’s distributees. Matter of Aleskas, N.Y.L.J., December 9, 2002, at 34, col. 6 (Surr Ct. Queens Co); Matter of Inga, NYLJ, April 22, 1992, at 26 (Surr. Ct. Queens Co.); Matter of Offerman, 90 Misc. 2d 346, 394 N.Y.S.2d 119 (Surr. Ct. Erie Co. 1977). In some cases, title companies or transferees would prefer that the transferor of the real property have some tangible authority for the conveyance. It is helpful to show the Court in such cases that there is some personal property that requires administration, even if it is a nominal amount ($50). Alternatively, the distributees may commence a proceeding under SCPA 2113 to have the court determine the distributees and their respective rights to inherit the real property.

B. Who Are decedent=s distributees?

In an administration proceeding, it is important to identify the decedent’s distributees, since they will be entitled to receive a share of the decedent’s estate (EPTL 1-2.5, 4-1.1 and 4-1.3), will have to be served with process or notified of the proceeding (SCPA 1003, 1005), and will also include the persons who are entitled to serve as the fiduciary of the decedent’s estate (SCPA 1001).

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51 52 1. Distributees

Decedent’s distributees, and their distributive share, as identified in EPTL 4-1.1, are:

If the decedent is survived by: Decedent’s distributees are:

A spouse and children or their issue* The spouse, children and their issue. The spouse takes the first $50,000 and 2 the remaining estate; the issue take the other 2 of the remaining estate, by representation.**

A spouse and no issue The spouse, who takes the whole estate. Under EPTL 5-4.4, parents are deemed distributees for purposes of distribution of proceeds of a wrongful death action where no issue survive.

Issue and no spouse The issue of the decedent, who take the whole estate by representation.

One or both parents and no spouse or The parent or parents, who take the whole issue estate.

Issue of decedent’s parents and no spouse, The issue of the decedent’s parents, who issue or parent (i.e., decedent is survived take the whole estate by representation by his or her brothers, sisters, nieces, nephews, and their issue)

One or more grandparents or issue of The grandparents or their issue are grandparents and no spouse, issue, parent distributees. or issue of parents (i.e., decedent is One-half passes to the surviving paternal survived by his or her Uncles, Aunts, first grandparent(s), or if neither survive to cousins or first cousins once removed). their issue, by representation, and the

* The term “issue” here refers to the descendants in any degree from a common ancestor, including adopted children. EPTL 1-2.1.

** The term “by representation” means that the property is divided into as many equal shares as there are (i) surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue, and (ii) deceased issue in the same generation who left surviving issue. Each surviving member in the nearest generation is allocated one share. The remaining shares (if there are deceased issue who left issue) are combined and then divided in the same manner among the surviving issue of the deceased issue as if the surviving issue who actually took a share had predeceased the decedent without issue. EPTL 1-2.16

53 other half passes to the surviving maternal grandparent(s), or if neither survive to their issue, by representation; provided that if decedent was not survived by a grandparent or their issue on one side, the whole estate goes to the grandparent on the other side, or if the grandparents did not survive, to the grandparents’ issue on the other side, provided that issue more remote than grandchildren of grandparents do not take any share of the estate if closer relatives survived (EPTL 4- 1.1[a][6]); and PROVIDED, that if decedent is survived only by great- grandchildren of grandparents (decedent’s first cousins once removed), then 2 of the estate passes to the paternal great- grandchildren of grandparents, per capita,* and one-half passes to the maternal great- grandchildren of grandparents, per capita (or all to one side if none on the other side survived). EPTL 4-1.1(a)(7).

First cousins once removed take only where there are no closer relatives. Matter of Shumavon, 260 AD2d 140, 701 NYS2d 84 (2d Dep=t 1999); Matter of Donahue, NYLJ, Nov, 28, 1994, at 27, col. 1 (Sur. Ct. NY Co.).

Half Blood relatives are treated in the same manner as full-blood relatives. EPTL 4-1.1(d).

SPOUSES:

Common Law Spouses:

A common law marriage between a man and a woman that is valid in another jurisdiction will be recognized as valid in New York for purposes of determining whether the “spouse” is a distributee. Matter of Reeves, N.Y.L.J. April 14, 2015, p. 34 (Sur. Ct. Erie Co. 2015) (insufficient evidence of common law marriage in South Carolina); Matter of Krasniqi, N.Y.L.J., Feb. 7, 2006, at 26 (Surr. Ct. Kings Co. 2006); Matter of Seekins, 194 Misc. 2d 422, 755

* The term “per capita” means that each eligible person takes in his or her own right an equal portion of the property. EPTL 1-2.11.

54 N.Y.S.2d 557 (Surr. Ct. Westchester Co. 2002); Matter of Libertini, N.Y.L.J., Nov. 2, 1999, at 36, col. 6 (Nassau County); Matter of Yoa You-Xin, 667 NYS2d 462 (3d Dep=t 1998). The burden of proving the common law marriage is on the person asserting its validity. Matter of Watts, 31 NY2d 941, 341 NYS2d 609.

Domestic Partners and Same Sex Spouses

Effective July 24, 2011, same-sex marriages became legal in New York State. Changes to the definition of “spouse” in the Domestic Relations Law appear to automatically alter the SCPA and EPTL to include same sex spouses, without any specific change required to the language of the SCPA and EPTL. The right of a surviving member of a same-sex couple to inherit where the Decedent died prior to the effective date of the Marriage Equality Law should be evaluated under the prior law, which did not recognize a same-sex marriage entered into in New York as a valid marriage.

A valid marriage entered into in another jurisdiction is recognized for some purposes in New York (see Godfrey v. Spano, 2007 Slip. Op. 27105, 15 Misc. 3d 809, 836 NYS2d 813 (Sup. Ct. Westchester Co. 2007) (upholding an executive order directing county agencies to recognize same-sex marriages validly contracted out-of-state); Godfrey v Hevesi, 2007 NY Misc. LEXIS 6589, 238 N.Y.L.J., Sept. 5, 2007 at 55 (Sup. Ct. Albany Co. 2007) (upholding a decision of the New York State retirement system to recognize a same-sex marriage entered into in Canada); Martinez v. Monroe, 50 A.D.3d 189, 850 N.Y.S.2d 740 (4th Dep’t 2008) (requiring employer to recognize validity of Canadian marriage to same-sex partner for purposes of employer-provided health benefits).

And in 2011, the First Department upheld a same-sex marriage entered into in another jurisdiction. The Court upheld a Surrogate’s Court determination that a Decedent who was married to a same sex spouse under the laws of Canada was survived by that spouse as the sole distributee, to the exclusion of surviving siblings, such that no citation was required to be issued to siblings. Estate of Ranftle, 81 A.D.3d 566, 917 N.Y.S.2d 195 (1st Dep’t 2011).

CHILDREN AND ISSUE

Adopted children take in the same manner as natural children, as currently provided in the Domestic Relations Law. DRL § 117; Matter of Park, 20 AD2d 926, 249 NYS2d 703, rev’d on other grounds, 15 NY2d 413, 260 NYS2d 169; see also Matter of Trainor, 45 Misc. 2d 316, 256 NYS2d 497 (distribution from adopted child to parents and their relatives). See DRL 117 for a complete discussion of whether a child may inherit from a parent or grandparent when the person who adopted the child is a close relative or step-parent. See also Matter of Johnson, NYLJ, Jan. 25, 2008 p. 25 (Surr Ct Kings Co) (daughter who was adopted by Aunt could still inherit from her mother. As long as adoptive parents was a descendant of the adoptee’s natural grandparents, the adoptive parent does not have to be descended from the same grandparents as the decedent. Legislative history show that concerns where a child is adopted by strangers is not present when child is adopted by a close family member). 7

After-Born Children

After-born children conceived during Decedent’s lifetime: (children conceived during decedent’s lifetime but born after decedent’s death) take as if they were born during decedent’s lifetime. EPTL 4-1.1 (e).

NEW: After-born children conceived through Artificial Reproduction: (children conceived after the decedent’s death using stored genetic material). EPTL 4-1.3, effective September 1, 2014, provides in relevant part that a posthumous child, referred to as a “genetic child” inherits from his or her genetic parent if four conditions are met:

1) the genetic parent storing the sperm or ova must expressly consent to the use of the genetic material for posthumous conception and authorize a person to make decisions about the use of the genetic material after his or her death. Notice must be in a written instrument executed no more than 7 years before the death of the genetic parent ;

(2) notice of the existence of the genetic material must be provided by the authorized person to the personal representative of the estate within 7 months of issuance of letters;

(3) within 7 months of the genetic parent’s death, the authorized person must record the written instrument with the Surrogate’s Court that grants letters in connection with the genetic parent’s estate; and

(4) The genetic child must be in utero within 24 months of the genetic parent’s death or born no later than 33 months after the genetic parent’s death.

Consult the statute for specific and additional requirements and limitations.

Note: the statutory language includes “ova” and “sperm” as “genetic material” but does not specifically include an “embryo.” There is thus uncertainly concerning the status of a child conceived from a preserved embryo.

The date limitations in EPTL 4-1.3 balance the right of individuals to conceive posthumously with the interest in insuring the finality of administration of decedents’ estates.

For decedents dying prior to September 1, 2014, see Matter of Martin B, 17 Misc.3d 198, 841 NYS2d 207 (Surr. Ct. N.Y. Co. 2007), which held that a child born through in vitro fertilization with cryopreserved semen would be included within the term “issue” for purposes of taking a share of an inter-vivos trust; however, this question does not appear to have been addressed in an administration proceeding.

Non-marital children (children born out of wedlock) are treated in the same manner as natural children of the mother, and are treated as natural children of the father if: 8

(A) there has been a judicial order of filiation (i.e., determination of paternity) during the father’s lifetime, or the father and mother executed and filed an acknowledgment of paternity pursuant to Public Health Law § 4135-b;

(B) the father has signed an instrument acknowledging paternity that meets the requirements specified in EPTL 4-1.2(a)(2)(B);

(C) paternity is established by clear and convincing evidence and the child’s father has openly and notoriously acknowledged the child as his own; or

(D) a blood genetic marker test had been administered to the father which, together with other evidence, establishes paternity by clear and convincing evidence. (EPTL 4-1.2(a)).

See, e.g., Matter of Marks, 16 Misc3d 334, 837 NYS2d 531 (Surr. Ct. Bronx Co. 2007) (open and notorious acknowledgment by all family members); Matter of Thayer, 1 Misc. 3d 791, 769 N.Y.S.2d 863 (Surr Ct. Madison Co 2003) (paternity established where father openly and notoriously acknowledged child and DNA testing showed 99.98% probability of paternity); Matter of Cipriani, N.Y.L.J., Nov. 8, 2001, at 19 (Surr. Ct. Bronx Co. 2001), aff’d, 298 A.D.2d 263, 748 N.Y.S.2d 735 (1st Dep’t 2002) (proof of paternity through admission in application to amend birth certificate); Matter of Sekanic, 705 N.Y.S.2d 734 (3d Dep’t 2000).

If the child was born when the child’s mother was married to another man, the child will have to overcome the presumption that the child is the biological child of the person to whom the child’s mother was married. Matter of Frazier, NYLJ, Mar. 24, 2008 at 27 (Surr. Ct. N.Y. Co) (presumption of legitimacy, while rebuttable, is one of the most formidable the law employs, and requires clear and convincing evidence to show that the presumption is entirely incompatible with common sense and reason); Laura WW v. Peter WW, 51 AD3d 211, 856 NYS2d 258 (3d Dep’t 2008) (husband is deemed the father of a child conceived through artificial insemination during the marriage; provision in separation agreement stating that husband had no financial obligation to the child held void against public policy).

Provided that the paternity of the non-marital child is established, if the non-marital child post- deceases, his or her distributees are treated in the same manner as distributees of a marital child. EPTL 4-1.2(b). The law of decedent=s domicile will govern whether a non-marital child is a distributee, regardless of the domicile of the child. Matter of Thomas, 367 NYS2d 182. Where the child is more remote than the immediate child of the decedent, the qualification of the non- marital child as a distributee should be determined according to the law in existence at the time of the decedent’s death, not as of the date of death of the child’s parent. Matter of Uhl, NYLJ, July 18, 2006 (4th Dep’t).

DNA Testing: Although EPTL 4-1.2 had been interpreted as requiring that DNA testing be performed during the Decedent’s lifetime ( See Matter of Hansis, 620 NYS2d 342 (1st Dep’t 1994)), the Courts have liberally permitted DNA testing to proceed posthumously where the 9

57 DNA sample was obtained prior to the Decedent’s death. See Matter of Michael R, 793 N.Y.S.2d 710 (Surr. Ct. Rockland Co. 2004) (lock of decedent’s hair provided by funeral home, together with decedent’s toothbrush, provided sufficient DNA and admissible as clear and convincing evidence of paternity); Matter of Seekins, 194 Misc. 2d 422, 755 N.Y.S.2d 557 (Surr. Ct. Westchester Co. 2002) (discusses evidentiary matters re use of donated skin sample); Matter of Sandler, 160 Misc2d 955, 612 NYS2d 756 (Sur. Ct. NY Co. 1994) (although exhumation of decedent’s body to obtain DNA sample was denied, blood genetic marker test was allowed using DNA components of decedent’s grandparents); See also, Matter of Nasert, 192 Misc. 2d 682, 748 N.Y.S.2d 654 (Surr. Ct. Richmond Co 2002) (DNA provided by decedent’s twin brother); Matter of Davis, N.Y.L.J., p. 20 (Surr. Ct. Kings Co. 2005) (Where affidavit of third party showed that the Decedent acknowledged paternity, Court permitted posthumous DNA testing).

There is a split in the district courts concerning whether a child has to show open and notorious acknowledgment by the parent before the Court will order DNA testing, with the Second Department requiring such a showing (Matter of Poldrugovaz, 50 AD3d 117, 851 NYS2d 254 (2d Dep’t 2008) (child must show some evidence of open and notorious acknowledgement and that DNA testing is reasonable and practical under the circumstances)) and the Fourth Department holding that no such showing is required (Matter of Morningstar, 17 A.D.2d 1060, 794 N.Y.S.2d 205 (4th Dep’t 2005) (child does not have to establish that the decedent acknowledged him or her before DNA testing will be ordered)). In a subsequent case in Bronx County, Surrogate Holzman reviewed the law concerning posthumous DNA testing, and after discussing both Poldrugovaz and Morningstar, concluded that in a case where the DNA sample was already available and disinterment was not required, the Court would permit DNA testing without a showing of open and notorious acknowledgment by the Decedent. Matter of Williams, N.Y.L.J. Dec. 14, 2009, at 26, col. 1 (Surr. Ct. Bronx Co. 2009)

Under the right circumstances, the Court can direct DNA testing to establish maternity. Matter of Gaynor, 13 Misc.3d 331, 818 NYS2d 747 *Surr. Ct. Nassau Co. 2006) (findong that an Order directing DNA testing to establish maternity is valid where the only persons who can provide samples are siblings or half-siblings).

DNA testing is generally not determinative on its own, but serves as “clear and convincing” evidence of paternity if accompanied by such things as acknowledgment of paternity. Matter of Bonanno, 192 Misc. 2d 86, 745 N.Y.S.2d 813 (Surr. Ct. N.Y. Co. 2002). However, one Surrogate has determined that DNA evidence obtained posthumously was clear and convincing evidence of paternity, and urged the legislature to change EPTL 4-1.2 to so provide. Matter of Santos, 196 Misc. 2d 972, 768 N.Y.S.2d 272 (Surr. Ct. Kings Co. 2003). Bills have been introduced in the legislature to make such a change in the law.

Children of Same Sex Couples

The presumption that a child born during marriage is legitimate has different applications in the context of same sex marriages, and there do not yet appear to be cases decided in the context of an estate proceeding. Where spouses signed a consent form declaring that any child born from 10

58 artificial insemination “shall be accepted as the legal child of our marriage” and the birth certificate listed both parents, the non-biological spouse was he parent of the child. Wendy G-M v. Erin G-M, 45 Misc. 3d 5774, 985 N.Y.S.2d 845 (Sup. Ct. Monroe Co. 2014) (in a proceeding in family court for various relief, including access to the child). To the contrary, the marital presumption was not applied where a man asserted that he was the father of a child born to two women in a same-sex marriage, holding that the presumption does not require the Court to overlook the reality that there are “biological differences between husbands and wives.” Matter of Q.M., 46 Misc. 3d 594, 995 N.Y.S.2d 470 (fam. Ct. Monroe Co. 2014).

2. Persons Disqualified as Distributees

In some cases, persons who would otherwise be considered decedent’s distributees are deemed to be ineligible, such as where the relationship cannot be clearly established, or where the parental or marital relationship has been abandoned by the party who seeks to share in the estate. Where a person alleges that an otherwise qualified distributee is not eligible to receive letters, or has forfeited his or her right to a share in the decedent’s estate, a status hearing is generally required to determine whether the alleged distributee is in fact a distributee. Such status issues are generally determined by the Surrogate or an attorney referee, either incident to the administration proceeding or, if not necessary to the determination of who will receive letters, at the time the estate is distributed.

Slayers

Generally, murderers are ineligible under the theory that a person may not benefit from his or her own wrongdoing. Matter of Covert, 97 N.Y.2d 68, 735 N.Y.S.2d 879,761 N.E.2d 571 (2001); Matter of Low, 22 A.D.3d 666, 804 N.Y.S.2d 356 (2d Dep’t 2005) (murdered disqualified as a matter of law); Matter of Kiejliches, 740 N.Y.S.2d 85 (2d Dep’t 2002); Matter of Steihler, NYLJ, April 20, 2006 at 21 (Surr. Ct. Richmond Co 2006) (rejecting defense that surviving spouse was not culpable by reason of mental disease); Matter of Macaro, N.Y.L.J. Oct. 12, 1999, at 31, col. 7 (person who murdered decedent’s sibling could not inherit); Mark v. Sabol, 180 Misc. 2d 855, 694 N.Y.S.2d 290 (Sup. Ct. N.Y. Co. 1999); Matter of Nicpon, 102 Misc.2d 619, 424 NYS2d 100; Matter of Hawkins, 213 NYS2d 188. See also Matter of Scott, N.Y.L.J., March 27, 2001, at 23, col 3 (Surr. Ct. Nassau Co. 2001). Since a person convicted of murder is also a felon, he or she would be ineligible to receive Letters of Administration. SCPA 707.

The Courts have expanded the slayer rule to prevent a slayer from indirectly inheriting a victim’s property through the estate of a third-party. In Matter of Edwards, 121 A.D.3d 336, 991 N.Y.S.2d 431 (2d Dep’t 2014), the decedent was killed by her son-in-law, and the decedent’s estate passed under the decedent’s Will to her daughter. The daughter died intestate 14 months later, leaving her husband as her sold distributee. The Appellate Division held that the son-in-law had forfeited his right to take a share of the decedent’s estate on the ground that a wrongdoer could not be allowed to profit from his wrong.

59 Slayers who are found not guilty by reason of insanity are permitted to inherit on the theory that they were not legally responsible for their actions. Matter of Fitzsimmons, 64 Misc. 2d 622, 315 N.Y.S.2d 590 (Sur Ct, Erie Co. 1970); Matter of Wirth, 59 Misc. 2d 300, 298 N.Y.S.2d 565 (Sur Ct, Erie Co. 1969), The insanity defense is a reflection of society's compassionate belief that such a person not be criminally punished (People v. Lancaster, 69 N.Y.2d, at 28, 511 N.Y.S.2d 559, 503 N.E.2d 990).

a). Surviving Spouse

EPTL 5-1.2 provides that a spouse will be disqualified as a distributee, and rendered ineligible to receive Letters of Administration, where:

-- There was in effect a decedent=s death a valid, final decree or judgment of divorce, annulment, or declaration of nullity of the marriage or dissolution of the marriage on the grounds of absence. Matter of Dominguez, N.Y.L.J., Nov. 25, 2002, at 20 (Surr. Ct. Bronx Co 2002) (spouse who entered into marriage for purposes of obtaining green card was not disqualified as a result, but was disqualified on the ground that the Decedent never divorced from 1st spouse, thus second marriage was void for bigamy). There is no disqualification unless the divorce proceeding reached judgment. Matter of Rabalais, N.Y.L.J., Nov. 19, 2003, at 23 (Surr. Ct. Kings Co 2003) (no disqualification where divorce judgment was not rendered before decedent’s death); Matter of Shephard, 671 NYS2d 561 (3d Dep’t 1998).

-- The surviving spouse procured an out-of-state final decree or judgment of divorce, annulment, or declaration of nullity of the marriage or dissolution of the marriage on the grounds of absence, which decree or judgment is not recognized as valid in New York (i.e., the surviving spouse actively but ineffectively sought to terminate the marital relationship)(see generally Greschler v. Greschler, 51 NY2d 368, 434 NYS2d 194 (1980) (foreign divorce recognized as valid in New York); Lacks v. Lacks, 41 NY2d 71, 390 NYS2d 875 (1976) (same); Matter of Holland, 150 AD2d 193, 540 NYS2d 803 (1st Dep’t 1989) (spouse who procured Haitian marriage barred from asserting its invalidity); Matter of Loeb, 77 Misc 2d 814, 354 NYS2d 864 (Surr. Ct. N.Y. Co. 1974) (spouse procured foreign divorce invalid in NY); Matter of Chomsky, 101 NYS2d 60 (Surr. Ct. Kings Co. 1950) (same re mail-order divorce).

-- A final decree or judgment of separation was rendered against the spouse and was in effect at decedent=s death. A widow or widower who procures a separation judgment is not ineligible. Matter of Smith, 243 AD 348, 276 NYS 646 (4th Dep’t 1935). Reconciliation after a final decree or judgment does not reinstate surviving spouse’s status, as such a decree or judgment can only be revoked in the manner prescribed in the Domestic Relations Law. See e.g. Matter of Granchelli, 90 Misc. 2d 103, 393 NYS2d 894 (Sur. Ct. Monroe Co. 1977). 12

-- The spouse abandoned decedent and such abandonment continued to the time of decedent’s death. The criteria for abandonment are the same as those that would be required to be proven if the parties were alive and one sought a divorce on grounds of abandonment. Matter of Ruff, 91 AD2d 814, 458 NYS2d 38 (3d Dep’t 1982). Abandonment requires proof of departure from the marital abode, without justification and with no intention of returning, and without consent of the non-abandoning spouse, which continues until the death of the decedent. Matter of Maiden, 284 NY 429, 31 NE2d 889 (1940); Matter of Reifberg, 58 NY2d 134, 459 NYS2d 739 (1983); Matter of Prince, 36 AD2d 946, 321 NYS2d 798 (1st Dep’t 1971), aff’d, 30 NY2d 512, 330 NYS2d 61 (1972); Matter of Carmona, N.Y.L.J., May 12, 2000, at 30, col. 2 (Surr. Ct., Bronx Co.); Matter of Sexius, NYLJ, March 20, 1998, at 27, col. 6 (Surr. Ct. N.Y. Co.). Reconciliation may be shown to rebut a prima facie case of abandonment. Matter of Smith, 190 Misc. 285, 72 NYS2d 609 (Surr. Ct. Monroe Co. 1947). Where the parties executed a voluntary separation agreement, the agreement constitutes consent, which precludes any finding of abandonment. Matter of Archibald, 19 Misc. 2d 705, 191 NYS2d 1021 (Surr. Ct. NY Co. 1959), appeal dismissed, 10 AD2d 576, 200 NYS 317 (1st Dep’t 1960). A spouse who remarries or cohabits with another is generally found to have abandoned the first spouse (whether or not there was a valid separation or divorce from the first spouse). Matter of Balso, 620 NYS2d 602 (3d Dep’t 1994); Matter of Khabbaza, 174 Misc2d 82, 662 NYS2d 996 (Surr. Ct. Richmond Co. 1997) (abandonment found even though Iranian law permitted husband to have four wives). Abandonment is extremely difficult to prove due to the absence of testimony from persons who really knew what occurred, as one party is deceased and the other barred from testimony due to the dead man’s statute. Matter of Sexius, NYLJ, March 20, 1998, at 27, col. 6 (Surr. Ct. N.Y. Co.).

-- Failure or refusal to provide support to a spouse where a duty to support existed and the spouse had the means to provide support, unless such marital duty of support was resumed and continued until the needy spouse’s death. Matter of Bennett, 142 AD2d 578, 530 NYS2d 38 (2d Dep’t 1988).

In addition, the spouse may have executed a voluntary waiver of his or her right to receive an intestate share or serve as administrator in a pre or post-nuptial agreement. Matter of Holtzman, N.Y.L.J., December 20, 2002, at 20 (Surr. Ct. N.Y. Co.) ( spouse was not disqualified by terms of antenuptial agreement where she had no independent counsel, no real opportunity to review the agreement before signing and no disclosure of assets); Matter of Laudadio, N.Y.L.J., March 21, 2001, at 20, col. 4 (Kings County Surr. Ct. 2001); Matter of Stegman, 42 Misc. 2d 273, 247 NYS2d 727 (Surr. Ct. Bronx Co. 1964); Matter of Banimowitz, 128 Misc. 518, 219 NYS 763 (Surr. Ct.. Bronx Co. 1927). Because marital agreements are strictly construed, an agreement must expressly waive the right to receive letters, and an agreement that only waives the spouse’s right of election 13

61 will not disqualify the spouse from being appointed as administrator. Matter of Schwartz, 94 Misc 2d 1024, 405 NYS2d 920, aff’d, 68 AD2d 841, 413 NYS2d 1023; Matter of Laney, 274 A.D. 250, 80 NYS2d 421, aff’d, 298 NY 838; Matter of Rosenbaum, 27 Misc.2d 492, 210 NYS2d 398, aff’d, 13 AD2d 745, 216 NYS2d 664 (separation agreement). b) Parent

A parent of the decedent will be rendered ineligible to receive Letters of Administration and disqualified from inheriting if the parent failed or refused to provide for the child while the child was under 21 years of age, unless the parental relationship and duties were resumed and continued until the death of the child. EPTL 4-1.4; Matter of Baecher, 198 AD2d 221, 603 NYS2d 504 (2d Dep’t); Matter of Pessoni, 11 Misc. 3d 245, 810 NYS2d 296 (Surr. Ct. Cortland Co. 2005) (father’s lack of communication with child after age of 15 until child’s death at age 30 met the standard for abandonment even though father had paid all court-ordered support); Matter of Gomez, N.Y.L.J., Sept. 5, 2003, at 21 (Surr. Ct. Bronx. Co) (parent disqualified where court determined that father’s long distance love and occasional visits with the decedent did not provide the natural and legal obligations of training, care and guidance); Matter of Arroyo, 710 N.Y.S.2d 492 (4th Dep’t 2000); but see Matter of Ball, 807 NYS2d 163 (3d Dep’t 2005) (no abandonment where mother tried to keep father away from child, and failed to list father on birth certificate, and father provided financial support and tried to schedule visits with child, which were refused by mother).

However, effective January 1, 2007, a biological parent who failed to provide support to his or her child will not be disqualified where the parent placed the child for adoption based upon either a false promise to arrange for the adoption of the child, or other fraud or deceit by a person or agency that results in the child not being properly placed for adoption. See N.Y. Senate Bill 43, ch. 285 of the Laws of 2006.

A parent who murders his or her child is also disqualified. Mark G. by Jones v. Sabol, 694 NYS2d 290 (Sup. Ct. NY Co. 1999).

Legislative bills have been proposed that would disqualify a parent or other distributee if he or she was convicted of a sex offense where the decedent was the victim.

Parents of Children Born by Medically Assisted Reproduction. Currently, there is no provision of the SCPA or the Domestic Relations Law concerning the status of persons born through medically assisted reproduction involving donated sperm or eggs. Legislative bills have been proposed that would specify that unless there is an agreement otherwise, the donor of such reproductive material who is not the spouse of the person who gives birth to the child is not to be considered the child’s parent.

62 c) Children

Non-marital children of a father who do not meet the statutory criteria for establishing paternity, as set forth in EPTL 4-1.2, are not considered distributees. See discussion of non-marital children under Section I (B)(1), supra. If a child does not have documentary proof that establishes paternity, a kinship hearing is often required. At such a hearing, the alleged child may offer witness testimony and documents that help to establish by clear and convincing evidence that the child was decedents’ and that the decedent held the child out to others as his child. Testimony concerning statements made by the decedent to the child or another interested party who might gain from the testimony may be curtailed due to the dead man’s statute if the administrator objects.

In terms of inheriting through or from a non-marital child, in order for the child’s father and paternal relatives to take an intestate share or receive letters, paternity must be established. Matter of Campbell, NYLJ, March 7, 1984, at 11 (Surr. Ct. NY Co.).

Step-children and god-children do not qualify as distributees. Holding Corp. v. Tow, 60 Misc.2d 422, 302 NYS2d 706; Matter of Pfarr, 38 Misc. 223, 77 NYS 326.

Adopted-out children (who have been adopted out of the family) do not qualify as distributees of their natural parents; they take as distributees of their adoptive parents. DRL ' 117; Matter of Trainor, 45 Misc.2d 316, 256 NYS2d 497. Legislative bills have been proposed that would provide that adoptive children do not lose the right to inherit or receive lifetime dispositions from his or her natural parents where the adoptive child maintains a relationship with the natural parent as a result of continuing living with the natural parent (such as where the child is adopted by a step-parent). The bill would codify existing case law regarding adoption by a step-parent. See Matter of Dana and Matter of Jacob, 86 N.Y.2d 651 (1995); Matter of Collura, 612 NYS2d 214 (2d Dep=t).

3. Identifying and Locating Distributees

If the decedent was survived by no distributees or only one distributee, or where the relationship of the distributees to the decedent is grandparents, aunts, uncles, first cousins or first cousins once removed, proof must be submitted to establish (i) how each distributee is related to the decedent and (ii) that no other persons of the same or a nearer degree of relationship survived the decedent. Uniform Rule 207.16(c). The proof is usually in the form of an affidavit and is submitted together with the petition for Letters of Administration. Unless otherwise permitted by the Court, if only one distributee survived the decedent, the affiant can not be the alleged distributee’s spouse or children. Uniform Rule 207.16(c). Generally, the affidavit of heirship required to be submitted in this instance will not require a statement that a diligent search was performed. However, as the relationship of the distributees becomes more remote, it is more difficult to find persons who are able to swear that there were no other family members. In such cases, or in any other case where the identity or whereabouts of a distributee are unknown, the 15

63 Court will require an affidavit of due diligence (not necessarily from the affiant who is swearing to the family history). See Paragraph (c), infra. Accordingly, petitioner must attempt to identify and locate decedent=s distributees.

a. Identifying Distributees

Interview decedent’s relatives, friends and neighbors; doormen and landlord, review decedent’s address book and mail; a family bible sometimes contains a list of births and deaths on the front or back cover; check the Surrogate’s Courts for records of known family members - distributees may have been listed as interested parties; birth and death certificates - give the names of an individual’s parents; marriage records; medical records that may list next of kin; church baptismal records often list god-parents who may have information; death notices in newspapers; if family has a relationship with a particular funeral director, funeral director’s records; cemetery records (a relative may be paying for perpetual care of a grave) and tombstones of decedent’s family; census records; immigration records; social clubs or religious organizations of which decedent was a member; and professionals (decedent’s doctors, accountant, lawyer, etc.).

Keep copies of any correspondence you send, and keep notes concerning any persons you contact, as you may need such information to document the scope and diligence of your search.

If none of the above methods is successful, private investigative search firms and genealogical experts can be hired to perform a search for heirs.

b. Locating Distributees

Once the distributees are identified, it will be necessary to locate them. Although it is not essential to find distributees whose whereabouts or identity are unknown at the time letters are sought (since service of process may be dispensed with upon such distributees under SCPA 1003(4)), a diligent search will have to be performed. Uniform Rule 207.16(d). In addition, it will be necessary to conclusively establish the identity of the distributees before the estate is distributed. If distributees are not found at the time of an accounting, process will have to be served upon the unknowns by publication (SCPA 307), and their share of the estate will likely have to be deposited with the Commissioner of Finance until the lost heir is found and can commence a proceeding to withdraw his or her share (SCPA 2223-2225). It is extremely helpful to have the lost heir’s date of birth and social security number, as many persons with the same or similar name may be located in a search. In addition to the sources used in identifying the heir, the following sources may be helpful: decedent’s old address books; old telephone directories; forwarding addresses at former residences; and advertisements in local newspapers. Government Sources include: Social Security Department, which 16

64 will forward a letter prepared by an attorney to a missing heir to the last known address, but will not provide you with any information concerning the lost heir other than whether the individual is known to be dead. You should send a cover letter explaining your situation and including the missing heir’s name, date of birth and social security number, and enclose the letter to the heir in an unsealed envelope. Also the Bureau of Vital Statistics or the Motor Vehicle Bureau may provide an address or forward a letter to the individuals address. An inquiry to a branch of the armed forces may also be of use if you are aware of the branch in which the missing heir served.

Lexis-Nexis is also a good resource for conducting searches for the location of distributees once you have the name of the individual. You can search through the People Pages library, judgments and liens library, property ownership library, etc. c. Affidavit of Due Diligence - Uniform Rule 207.16

Where a petition alleges that the identity or whereabouts of an individual who must be served with process is unknown, the application for letters must contain an affidavit showing that the affiant has used due diligence in endeavoring to ascertain the identity, names and addresses of all such persons. Uniform Rule 207.16(d). Success is not the goal; the true measure of due diligence is showing that the appropriate avenues of investigation have been pursued, with or without results.

The affidavit should attempt to indicate the names of the missing distributees, either first or last names, and their approximate ages, if available. Who provided the information on the missing heirs? When and where were they last heard from, if at all? Then list what efforts were made to locate the missing heir - who did affiant speak to? Where did affiant look, who were letters of inquiry sent to? What was the response?

Compliance with the rule is not intended to be costly or overly time-consuming. An amendment to Rule 207.16 in October of 2000 provided the parameters of a “diligent” search as follows: “Absent special circumstances, the affidavit will be deemed to satisfy the requirement of due diligence if it indicates the results obtained from the following:

a) examination of decedent’s personal effects, including address books;

b) inquiry of decedent’s relatives, neighbors, friends, former business associates and employers, the post office and financial institutions; 17

c) correspondence to the last known address of any missing distributee;

d) correspondence or telephone calls to, or internet search for, persons of same or similar name in the area where the person being sought lived;

e) examination of the records of the motor vehicle bureau and board of elections of the state or county of the last-known address of the person whose whereabouts is unknown.

In probate proceedings, the court may accept, in lieu of the above, an affidavit by decedent setting forth the efforts that he or she made to ascertain relatives.”

d. Additional Resources

An excellent guide to conducting a search is found in a New York Law Journal article prepared by former King’s County Surrogate Bloom, among others, entitled “A Step-by-Step Guide to Conducting a Diligent Search.” NYLJ, Feb. 8, 1994, at 1, column 1. A chart beginning on page 2 of the article provides contact information for several government agencies.

Some genealogical researchers who have been used by counsel to the Public Administrator in the past include: Jaisan, Inc in New York (http://www.jaisaninc.com); Dennis Langel Investigations/Genealogy Research Corp in Huntington, New York http://www.findheirs.com/); Laurie Thompson in New York (490 West End Avenue New York, NY 10024, 212-724-1817).*

Online resources. There are many resources for locating heirs on the web, some more successful than others. Most are able to locate addresses and telephone numbers, and some provide more detailed searches for free. Non-public information is not on the web. Some sources for locating missing heirs (some free or partially free) include:

www.ci.nyc.ny.us and http://home2.nyc.gov/html/records/html/vitalrecords/home.shtml (for a New York city decedent) and http://www.health.state.ny.us/vital_records/ for New York residents outside of New York City.;

* Note that the author has no personal knowledge of these genealogists and thus is not in a position to vouch for their performance.

66 http://www.ssa.gov (Social Security Administration online); http://vitalrec.com (identifies where to search for vital records, with a link to Ancestry.com’s search engine); http://www.Ancestry.com (search for current address, Social Security death index, census, vital statistics and links to other sources); http://www.superpages.com and http://www.anywho.com (search for current addresses in US and conduct reverse telephone directory searches); http://www.knowx.com (public information search); http://www.docusearch.com (offers many free searches and locate searches, DMV driver & vehicle searches, telephone record searches, financial & bank searches, and criminal & property record searches); http://www.surnameweb.org/ (surname search, with a links to many other web pages and About.com’s genealogy page); http://www.cyndislist.com/ (a list of genealogical webpages); http://www.gensource.com/ifoundit/ (another list of web pages); www.semaphorecorp.com/wdtg/jump.html (provides ability to track people who have moved, changed their names, e-mail addresses or web pages) e. Kinship Hearings

At the beginning of an administration proceeding, a kinship hearing may be required when a remote distributee claims priority over the Public Administrator to act as administrator of the estate. Kinship hearings are similar to status hearing, except that in the former the identity of all of decedent’s distributees is determined, and in the latter the status, or standing, of one distributee is determined (i.e., whether a spouse is disqualified, or non-marital child is a distributee). Kinship hearings are also held at the accounting stage of an administration (when letters have been issued to the Public Administrator, before distribution of the estate) and when an alleged distributee seeks to reclaim assets that were deposited by the Court with the commissioner of finance (i.e., where no distributees were found, or where alleged distributees were initially unsuccessful in establishing their relationship to the decedent and entitlement to the estate).

Where the alleged distributees are cousins, and often when alleged distributees are aunts, uncles, nieces or nephews, a kinship hearing is required, either at the time letters are sought or at the time the Public administrator seeks to distribute the estate assets. A kinship hearing is generally not required when decedent is survived by a spouse, issue, parents or siblings.

67 At the hearing, the alleged distributees must submit documents and testimony that establishes (i) that the claimant and the decedent share a common ancestor, (ii) that there are no other distributees of a closer degree of relationship to decedent who survived the decedent (i.e., testimony from friends and other relatives that the decedent did not have any children, natural, adopted or non-marital, who survived, etc.), and (iii) that there are no other distributees with an equal right to inherit (referred to as “closing the class”). Typical documents include birth, marriage and death certificates; school, baptismal, hospital, church, court, army, motor vehicle, Veterans Administration, Social Security, immigration and census records, family bible (pedigree document), funeral home records, and court documents, including probate or administration documents and guardianship documents. See CPLR 4518, 4526, 4539, 4540, 4542, 4543. Witnesses, including alleged distributees themselves, may testify as to family history that has been transmitted from one generation to another if the testimony meets the pedigree exception to the hearsay rule (i.e., the person who originally made the statement concerning the family relationship is dead and unable to testify him or herself, the declaration was made at a time the declarant had no motive to lie, and the declarant was related to the decedent by blood or marriage). See Richardson on Evidence, ' 8-901 through 8-910. Pedigree statements may also be contained in documents, such as the family bible that has a list of births and deaths in the cover. Interested parties may not testify concerning transactions with the decedent if an objection is made to the testimony. CPLR 4519 (the “dead man’s” statute). However, in Bronx county the dead man’s statute is not applied; all testimony is permitted and the court accords potentially self-interested testimony the appropriate weight. Certain presumptions assist in proving kinship, such as the presumption of marriage (Hynes v. McDermott, 91 NY 451 (1883); Smith v. Smith, 194 AD 543; Matter of Macklin, 82 Misc 2d 376, 371 NYS2d 238 (Sur. Ct. NY Co. 1975)); legitimacy of children born in wedlock (Matter of Findlay, 253 NY 1 (1930); Matter of Dugro, 287 NY 595; Hynes v. McDermott, 91 NY 451 (1883); Matter of Anonymous, 192 Misc 359, 77 NYS2d 121 (Sur. Ct. Monroe Co. 1948)); death after five years absence (EPTL 2-1.7; SCPA 2225); and presumption that person who would have been 100 years old at the date of decedent’s death presumed to have predeceased the decedent (Young v. Schulenberg, 165 NY 385, 59 NE 135 (1901); Matter of McMahon, 104 NYS2d 1020 (Sur. Ct. Queens Co. 1950). The burden of proof in a kinship hearing is on the party claiming to be a distributee. Almost always, the Public Administrator is a party to the kinship hearing. It is the Public Administrator’s responsibility to identify the decedent’s rightful distributees (Matter of Ullerich, 178 Misc.2d 62, 677 NYS2d 913 (Sur. Ct. Nassau Co. 1998)), and counsel to the Public Administrator is often quite helpful in proving kinship at the hearing.

At the conclusion of the hearing, the court renders a decision determining who the decedent was survived by, i.e., who are decedent’s distributees, and the share of the estate to which each is entitled. 20

Note that when the identity of kin is to be determined in a kinship hearing, proof must be completed by the party seeking to establish kinship within six months from the date fixed for a hearing by the Court or the date of referral to a court attorney referee or the petition for administration will be dismissed, without prejudice. Uniform Rule 207.25.

C. Serving as Administrator

1. Eligibility and Priority for Letters

Letters of Administration will be issued to the persons specified in SCPA 1001, in the order of priority set forth in the statute. This order of priority is mandatory: letters must issue to those persons who are eligible and willing to accept them (Matter of Kelly, 238 NY 71), unless the eligible persons all agree to designate someone else to serve. Unless there is agreement between the parties, the Surrogate has no discretion to alter the priority set forth in SCPA 1001, except that the Surrogate may select one or more distributees to serve where the distributees have equal priority. The persons listed in SCPA 1001 must be adult and competent and have the relationship listed in the statute, but must also be distributees (i.e., decedent’s parents can not serve if decedent was survived by a spouse and/or issue, even if the spouse and issue decline to serve; the Public Administrator would be appointed in that situation. See. E.g., Matter of McCarthy, 269 AD 145, 54 NYS2d 591, aff’d, 269 NY 987.).

It is important to remember that a person with priority may designate a non-distributee to serve in his or her place. Thus, if the person with priority renounces, letters need not be granted another eligible distributee with lower priority or to the Public Administrator.

The priority for letters among distributees (SCPA 1001) is as follows:

a) Surviving spouse - Has the highest right to serve, even if another would perform better as administrator. Matter of Pascal, 20Misc2d 337, 152 NYS2d 185 aff’d, 4 AD2d 941. A disqualified spouse may be able to serve as administrator as the guardian of his or her minor child. Matter of Porrata, 89 Misc 2d 663, 392 NYS2d 221.

b) Children In a contested proceeding for letters of administration, letters issued to decedent’s son, as he had priority. Matter of Hirallal, N.Y.L.J., Sept. 26, 2002, at 25 (Surr. Ct. Kings Co).

c) Grandchildren

69 d) Mother or father

e) Brothers or sisters

The rights of decedent’s brothers and sisters to serve is superior to that of issue of a deceased brother or sister. Matter of Governor, 23 Misc 2d 994, 203 NYS2d 511.

f) Any other distributee, with preference among them given to persons entitled to the largest share in the estate, provided that (i) letters may be granted to one or more persons who are equally eligible, and (ii) if the only distributees eligible to serve are issue of grandparents, other than aunts or uncles, on only one side of the family, letters shall issue to the Public Administrator instead of the distributees.* See Matter of Pearsall, 191 Misc. 2d 66, 740 N.Y.S.2d 605 (Surr. Ct. Nassau Co. 2002) (where paternal cousin was entitled to 50% of decedent’s estate and 5 maternal cousins were collectively entitled to the other 50% of estate, paternal cousin had priority for letters since she had the largest share in the estate, since intent of statute is, inter alia, to give obligation of administering estate to the person with the largest stake in appropriately administering the estate). If the only eligible distributees are aunts and uncles on one side, letters may be issued to them, but a bond may be required to protect the interests of the other side of the family.

g) If a distributee post-deceased, or is an infant or incompetent, Letters of Administration may be issued to the individual’s fiduciary, committee or conservator in the priority specified in SCPA 1001 (2) (3) and (4). This includes corporate fiduciaries. Thus, where the deceased distributee’s fiduciary was a non-domiciliary corporation, that corporation had priority for letters and, although it was not qualified to act in New York under the banking law, it had priority to designate an eligible administrator. Matter of Edwards, 56 Misc. 2d 982, 290 NYS2d 314.

h) Generally, upon agreement of all of the distributees (or the fiduciaries of any deceased, infant or incompetent distributee), they may consent to the appointment of any distributee or a non-distributee as administrator, including a trust company or other corporation authorized under New York to act as a fiduciary. SCPA 1001(5), (6), (7). Refusal of even one distributee negates the possibility of designating an administrator. Matter

* For more on letters to aunts, uncles and cousins, see Matter of Drumheller, 163 Misc2d 760, 622 NYS2d 196 (Sur. Ct. NY Co. 1995); Matter of Giganti, NYLJ, Jan. 24, 1994, at 29, col. 5 (Sur. Ct. Bronx. Co.).

70 of Hassam, 141 Misc. 366, 252 NYS 706, aff’d, 235 AD 609, 255 NYS 836. Note that renunciation of the right to serve (see Forms annexed to this outline) does not equate to designation of or consent to another serving. Matter of Murphy, 87 Misc 564, 151 NYS 475. The renunciation form in the OCA official forms contains a provision where the renouncing party may indicate consent to another serving as administrator.

Banks, trust companies and other corporate fiduciaries: Under banking law 131(3), a foreign bank or trust company may serve as trustee in New York only if there is reciprocity between New York and that state (i.e., a New York bank or trust company could serve as fiduciary in that state). For reciprocity with Connecticut, see Conn. Gen. Stat. ' 45a-206; for Pennsylvania, see 7 Pa. Cons. Stat. ' 106(b).

Where two or more eligible persons have an equal right to letter of administration, the court has discretion to grant letters to either person alone or may grant letters to more than one. Matter of DeHart, 8 Misc.2d 531, 166 NYS2d 446; Matter of Pi-Eng Liu Wu, N.Y.L.J., at 31 (Surr. Ct. Westchester County) (where persons with equal right to letters were hostile to one another, the Court may grant letters to one, giving preference to the person with the largest share of the estate or the person who is selected by a majority of the beneficiaries). The Court may be reluctant to grant joint administration due to the increase in commissions and the increased potential for conflict in estate administration. In general, the Surrogate’s decision is final, as the appellant would have to show that the Surrogate exercised gross abuse of discretion in the selection of the administrator.

Upon the petition of a person with priority, the court may issue letters to that person in conjunction with another who is not a distributee, including a trust company. SCPA 1001(5).

A non-resident alien may consent under SCPA 1001(6) to the appointment of a non-distributee to serve as administrator of the estate. Matter of Pesantez, 185 Misc. 2d 869, 714 N.Y.S.2d 652 (Surr. Ct. Nassau Co. 2000).

If no appointment is made to an eligible distributee or their designee, then pursuant to SCPA 1001(8), the court may issue letters, in order of priority, to:

a) The Public Administrator or chief fiscal officer of the county

b) The petitioner, in the discretion of the court

c) Any other person(s).

71 During the course of administering the estate, if the office of administrator becomes vacant for any reason, the court may grant Letters of Administration de bonis non to one or more eligible persons in the same manner as an application for original letters. In such a case the bond may be set in the amount of the assets remaining to be administered. SCPA 1007. The administrator d.b.n. continues the administration where the prior administrator left off.

Where the decedent is survived by aunts, uncles, nieces, nephews or cousins, a kinship hearing may be required. In such a hearing, the alleged distributee submits documents and testimony to establish that the person is related to the decedent and that no person with a closer relationship who would be a distributee survived the decedent. See Section I(B)(3)(e) for more on Kinship Hearings.

SCPA 1001(9) provides for the issuance of letters of administration where a purported Will has been filed in the court and proceedings for its probate have not been instituted within a reasonable time or have not been diligently prosecuted. The Court, sua sponte, may refuse to issue letters under this section if it determines that there is a valid reason to probate the Will, such as where the distribution is different under intestacy. Matter of Fischer, 24 A.D.3d 858; 804 N.Y.S.2d 863 (3d Dep’t 2005) (Appellate Division held that the Surrogate’s Court did not abuse its discretion in denying letters where 12 years had passed since the Decedent’s death and Will was never offered for probate. Court held that parties should not be permitted to ignore the decedent’s intent and thereby engage in post-mortem tax planning); but compare Matter of Von Ripper/Matter of Iacono, 95 Misc. 2d 952, 408 N.Y.S.2d 686 (Surr. Ct. N.Y. Co. 1978) (holding that the Court had discretion to issue letters of administration where the Will differed from intestate distribution where all parties were adult and competent and waived, and where the Court found that there was no purpose in probating the Will).

2. Ineligible Persons

All potential fiduciaries must meet the eligibility requirements of SCPA 707, which provides that the following persons are ineligible to serve:

a) infants (i.e., under 18 years of age);

b) incompetents - defined as any person judicially declared incompetent to manage his affairs (SCPA 103(26));

c) non-domiciliary aliens (except a foreign guardian under 1716[4]), provided that a non-domiciliary alien may serve together with a co- administrator who is a New York state resident;

d) felons; and

72 e) persons incompetent by reason of substance abuse, dishonesty, improvidence, want of understanding, or other unfitness for execution of the office of fiduciary, including, in the court=s discretion, a person unable to read and write the English language.

In addition, an otherwise eligible parent may become ineligible to receive letters if he or she abdicated his or her parental responsibilities, and an otherwise eligible spouse may become ineligible to receive letters if he or she abdicated his or her marital responsibilities or waived the right to receive letters in a marital agreement (see Persons Disqualified as Distributees, Section I (B)(2), supra).

3. Method of Qualifying as Administrator

To qualify, the administrator must file in the Surrogate’s Court an oath swearing that he or she will honestly fulfill the duties and account for all property he or she receives as administrator, and an acknowledged instrument stating the administrator’s domiciliary address and designating the clerk of the court for service of process in the event the administrator can not be located within the State after a diligent search. SCPA 708.

The oath and designation are found at the end of the petition for Letters of Administration and must be notarized, and are generally submitted together with the petition and application for Letters of Administration. Thus, while the decree granting Letters of Administration may read that letters will issue when the administrator has “duly qualified according to law,” the administrator has usually already qualified by the time the Decree is signed. In the event that an administrator designated by the court does not complete the steps required to qualify, the Court may entertain a petition by an interested party, creditor or the Public Administrator to deem that the designated administrator has renounced his or her right to serve.

4. Bond

The administrator must procure a bond to secure the rights of persons interested in the estate. However, if the person who will serve as administrator is entitled to the entire estate or if all persons interested in the estate consent to dispense with the bond or allow a bond in a reduced amount, then the Court can dispense with the bond requirement or limit the amount of the bond to protect only the rights of estate creditors. SCPA 805. The amount of the bond is specified in SCPA 801, and is generally fixed at an amount not less than the value of the personal property received, plus gross rents of real property receivable by the fiduciary in 18 months, plus probable recovery in a cause of action prosecuted by the fiduciary. SCPA 801(1)(a). No bond is required at all if the amount of the estate is less than $20,000, the current threshold for small estate administration (See Section II (A) infra) (note that this amount will change to $30,000 when the amount of a small estate proceeding increases to $30,000 in January of 2009). An additional bond is required before an administrator receives the proceeds of any real property sold pursuant 25

73 to EPTL 11-1.1. SCPA 805(3). The Administration Clerk will review paragraph 3 of the petition for Letters of Administration in order to determine the value of the estate and corresponding appropriate amount for the administrator’s bond.

If the only asset of the estate is a cause of action, and thus the value of the estate is uncertain, the Court may dispense with the bond requirement but issue restrictive letters which allow the administrator to pursue the claim but restrict the right to settle the claim or collect the proceeds of any settlement or judgment. In order to collect the proceeds, the administrator must commence a separate proceeding to lift the restrictions on his or her letters and account for the proceeds of the claim. SCPA 702(1). Similarly, where the filing of a bond is otherwise impractical, the court may issue restrictive letters that permit the fiduciary to receive and administer certain specified assets, and restrain the administrator from receiving or administering additional assets until a further order of the Court. SCPA 702(2).

D. Where to Commence an Administration Proceeding: Jurisdiction and Venue

1. NY State Domiciliary Decedents

The Surrogate’s Court of any county has jurisdiction over the estate of a decedent who was a domiciliary of state of New York at the time of his or her death. The proper venue for a proceeding is in the County of decedent’s domicile at the time of his or her death. If a proceeding is commenced in the incorrect county, the court does not lose jurisdiction but is required to transfer the proceeding to the proper county. SCPA 205. See also SCPA 103(13)(15).

2. Non-Domiciliary Decedents

The Surrogate’s Court of any county has jurisdiction over the estate of a non-domiciliary who leaves property in the state of New York or who has a cause of action for wrongful death against a domiciliary a domiciliary of the state. Jurisdiction in New York may be obtained whether the property was left in New York before decedent’s death or is brought or transferred into New York after the decedent’s death. Proper venue is the county where decedent’s property is located or the county of domicile of the defendant of the wrongful death action. Where venue is proper in more than one county, the court where a proceeding is first commenced with proper venue retains jurisdiction, and matters pending in other counties are transferred to it. SCPA 206

Observation - It has been accepted practice that a potential administrator may bring property of a non-domiciliary into New York in order to obtain jurisdiction here, and may then administer the estate and collect the assets of the decedent, including commencement of wrongful death and discovery actions. Where New York is not the place of original administration (i.e., ancillary Letters of Administration are sought), there may be limits on the ancillary administrator’s ability to bring a discovery proceeding or 26

74 otherwise seek to administer assets that are not physically located in New York. Mattter of Obregon, 921 NY2d 591 (1998). It is uncertain how far the holding in Obregon extends, as the circumstances there were somewhat unusual.

E. How to Commence an Administration Proceeding

An administration proceeding is commenced with the filing of a petition for Letters of Administration. The petitioner is not accorded any priority to receive letters, and may be a person who is not even qualified to receive letters. Together with the petition are certain required documents that make up the application and other documents that may be necessary depending upon the circumstances. The documents that are required to be filed include the petition, any divorce or adoption decrees or orders of filiations for nonmarital children; a death certificate; affidavit of heirship, if required; citation and/or renunciation of letters and waiver of service of process, as applicable; statement of sole attorney-administrator, if applicable; the appropriate filing fee and notice of the application for letters. To comply with the signing requirements of Part 130 of the Uniform Rules, be sure to sign each document in the application, or include a one-page statement indicating something along the lines of “the attorney signature on this page is intended to apply to each document contained in this application, in compliance with the requirements of 22 NYCRR Part 130.” Include the attorney=s name, address and signature on the page.

Upon submission of the complete application, the court will issue the citation (the Surrogate’s Court’s equivalent of a summons) to persons other than the petitioner who have an equal or prior right to serve as administrator. The attorney for petitioner or the petitioner should appear on the return date of the citation in order to be sure that the application is marked for decree and no objections are filed. If service is incomplete or improper, the return date will be adjourned and, if necessary, a supplemental citation will be issued. If jurisdiction is complete and no opposition has been filed, the file will be marked “for decree” or “for letters” and, upon proof that the bonding requirement, if any, has been met (see Section I (C)(4), supra), Letters of Administration will issue to the appropriate person or persons. If objections are filed, on the return date or at any time before letters are granted (SCPA 709), letters will not issue and, instead, the file will be assigned for a conference before the Surrogate, the Surrogate=s law clerk or a member of the Court’s law department.*

Forms necessary to commence a proceeding are attached. Some forms can be obtained online at http://www.courts.state.ny.us, and, if you are a member of the Trusts and Estates section of the NYSBA, the complete set of official forms can be purchased and downloaded from the Trusts and Estates Section page of the NYSBA web site at http://www.nysba.org

* This outline is not intended to cover the manner of handling a contested proceeding for Letters of Administration, and further reading and/or research should be pursued if objections are filed.

75 1. The Petition for Letters of Administration

The general requirements for a petition for Letters of Administration petition are set forth in SCPA 304 and 1002 and Uniform Rule 207.16.

Paragraph 1: The Petitioner

A person may petition for the appointment of himself, or if he or she is not eligible or qualified to serve, may seek the appointment of another person who is eligible and qualified. SCPA 1002. The person for whom letters are requested, be it the petitioner or some other person, is listed in Paragraph 9(c) of the petition. Persons who may petition for letters include:

(1) any “person interested” in the estate of an intestate (i.e., distributees) (see SCPA 103[39] and EPTL 4-1.1); (2) a non-distributee upon the consent of all distributes (SCPA 1001, 1002); (3) the Public Administrator or chief financial officer of any county for which no Public Administrator is appointed (SCPA 1002); (4) a creditor (SCPA 103(11) and 1002); and (5) a person interested in a lawsuit in which the decedent would have been a party (SCPA 1002).

Paragraph 1 asks the petitioner to disclose his or her domicile (a non- domiciliary may serve, but a domiciliary co-administrator must be appointed [SCPA 707(c)]).

Statement of Sole Attorney-Administrator: Paragraph 1 also asks the petitioner to disclose whether he or she is an attorney. If the petitioner is an attorney seeking to act as sole administrator, he or she must file a statement disclosing that he or she is an attorney and whether the law firm of which he or she is associated will act as counsel to the estate. (Uniform Rule 207.16 (e). The sole attorney-fiduciary should also be aware of Uniform Rule 207.52, which requires an attorney-fiduciary to file an “accounting” disclosing the commissions and attorneys fees that will be requested.

Paragraph 2: The Decedent

Paragraph 2 requires a statement of the domicile of the decedent. If the domicile is different than that shown on the death certificate, and affidavit explaining the discrepancy must be submitted. If decedent was a non- 28

76 domiciliary, the court may require statement as to any administration or probate proceedings pending in other jurisdictions, assets located in New York, decedent’s state of domicile and the laws of inheritance of that state.

The death certificate (Uniform Rule 207.15): Paragraph 2 also requires the filing of a death certificate. Death Certificates are generally obtained by the funeral director. The attorney may wish to ascertain that the correct information has been provided for the death certificate (i.e., legal name, Social Security number, date of birth, marital status, domicile and cause of death), since corrections to the death certificate may be difficult, time consuming and expensive. It is also advisable to inform a family member or the funeral director of the number of death certificates that are anticipated to be required in administering the estate, as ordering later on can be delayed, particularly in New York City or if death occurred out-of- state or abroad. (Death certificates presently cost $15.00 each). In addition to the administration application, death certificates are required for life insurance (one per company), joint bank accounts and investment accounts, totten trust bank accounts (‘in trust for’ accounts), employee death benefits, IRA’s and annuities that are payable to a named beneficiary and ancillary probate (required if real property located outside New York passes under the will). If additional death certificates are needed, submission of application in person will generally speed up processing in New York and some other counties. The name on the petition for letters must match the name on the death certificate, although additional “a/k/a” names may be included on the petition.

For online information on ordering death certificates of New York City residents, go to http://home2.nyc.gov/html/records/html/vitalrecords/home.shtml. For information on death certificates of residents outside New York City, go to http://www.health.state.ny.us/vital_records/. For information outside the five boroughs, try www.vitalrec.com.

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Paragraph 3: Assets of the Estate

Paragraph 3 seeks identification of testamentary assets - those assets that are owned by the decedent in his or her name, or are payable to his or her estate at death. Do not include joint assets or assets payable to a named beneficiary, such as life insurance, “in trust for” assets or an IRA. The value of the property listed will be used to determine the initial filing fee (see Sub-Section 4, infra) and the amount of the administrator’s bond (see Section I (C)(4), supra), which may be dispensed with upon filing of written consent by the distributees to dispense with the bond.

Paragraph 3 also seeks disclosure of any cause of action in favor if the decedent or any action that the administrator may bring (such as a wrongful death action) where the amount of recovery is uncertain and the fixing of a bond is thus impractical. If the decedent is survived by a spouse and parents, but no issue, the parents must be identified in paragraph 3, since the parents may share in the wrongful death recovery even though they would not be considered distributees entitled to a share in any other portion of the estate. EPTL 5-4.4.

Paragraphs 4 and 5: Decedent’s Will and Prior Proceedings

Paragraph 4 seeks a statement that a diligent search was performed to locate a will and none was found. A diligent search includes a search of a safe deposit box if there is any indication that the decedent might have kept a will there, or an apartment search if the apartment has been sealed. See Sections V (A)(2) and (3) of the “Preparing for Estate Administration” outline in this course book, and the forms annexed thereto, for additional information on safe deposit box and apartment searches. The petitioner must also disclose whether or not he or she was able to obtain information concerning the whereabouts of a will.

Paragraph 5 seeks a statement that a search of the court records was performed and no proceeding for probate or administration was ever made, and that the petitioner believes that no application has been made to a Surrogate=s Court in another county.

Note that an administration proceeding may be commenced if a will is filed in Court but no proceeding for probate has been commenced within a reasonable amount of time, or where a proceeding was commenced but probate is not being diligently pursued. SCPA 1001(9). However, if there is a Will on file, the court may require that the invalidity of the Will be established in a probate proceeding (or a “reverse probate proceeding” in 30

78 which the potential administrator seeks to establish that the will on file should be denied probate) before the application for letters will be entertained.

Paragraphs 6 and 7: Decedent’s Distributees and Other Necessary Parties

Paragraphs 6 and 7 seek to establish who will be required in order to complete jurisdiction, and the paragraphs must be consistent. The distributees who are required to receive a citation (unless they waive service of process) must be identified, and if there are any minors, incompetents or persons under a disability, those persons must be identified because the court may require appointment of a guardian ad litem in order to receive a citation on their behalf and thus complete jurisdiction. For paragraph 7, if the distributees are numerous, use a separate page to list all of the distributees and write the words “see annexed list” or “see rider” to indicate that the list is provided elsewhere, and staple or otherwise insert the rider into the middle of the petition.

Paragraph 6 seeks a general statement of the number and class of distributees. In the order listed, put the word “no” in any category in which there is no distributee until you reach a class where there are distributees. Indicate the number of distributees in any class in which there are distributees, and then place an “X” in any subsequent classes. For instance, if a decedent is survived by a spouse and three children (or descendants of children), place a “1” in class “a”, place a “3” in class “b” and place “x” in each subsequent class. If decedent had not been survived by a spouse, the word “no” would be placed in class “a.” If the decedent was divorced, a copy of the divorce decree must be submitted. The petitioner must also indicate any issue of the decedent who were adopted by persons related to the decedent.

If any distributees who are required to be served with citation (i.e., who have a right to Letters of Administration prior or equal to that of the petitioner) derive their status through a deceased person, the petition must identify the relationship of the distributee to the decedent and identify the name and relationship of each person through whom such distributee claims to be related to the decedent, OR annex a family tree that shows the name, relationship and date of death of each person through whom such distributee claims to be related to the decedent, together with an affidavit of a person having knowledge of the contents of the family tree. Uniform Rule 207.16(b). For instance, where decedent was survived by a son and a grandson who is the child of a pre-deceased daughter, the petitioner should indicate next to the grandson’s name that he is decedent=s grandson, that he is the son of the decedent’s daughter, the name of the daughter and the 31

79 date of her death. If the relationship is more remote than a grandchild, it is often easier to prepare an affidavit of heirship and a family tree.

In Paragraph 7(a), list and provide the address for all distributees who are adult, competent, not otherwise under a disability and whose whereabouts are known.

In Paragraph 7(b) list and provide all information requested as to all distributees who are:

-- infants (under 18years of age) (as to whom Schedule C must also be completed);

-- under a disability (i.e., are incompetent, institutionalized in prison or a nursing home or elsewhere)

-- whose identity or whereabouts are unknown. If any such persons are listed, Schedule D must be completed AND must submit the affidavit required by Uniform Rule 207.16(d). The rule provides that, where a petitioner alleges that the identity or whereabouts of an individual who must be served with process is unknown, the petitioner must submit an affidavit showing that he or she has used due diligence in endeavoring to ascertain the identity, names and addresses of all such persons. See Section I (B)(3), supra, for more on the scope of a diligent search. The petition should also seek, in the “wherefore” clause, to dispense with service of process on the unknown distributees.

If any of the persons listed in Paragraphs 7a or 7b are non-marital children or descendants of non-marital children, prepare and file Schedule A. Uniform Rule 207.16(a). If any of the persons listed in Paragraphs 7a or 7b are adopted children of the decedent, prepare and file Schedule B.

Paragraph 8 requires a statement of outstanding debts or funeral expenses.

Paragraph 9

Requires a statement that no persons other than the ones listed in the petition have an interest in the estate.

Request for Relief: The “Wherefore” Clause

This section asks the Court to take action and should contain all of the relief that the petitioner is seeking to have granted in the administration 32

80 application. If a citation is required, it should be indicated here. No citation will be required if the petitioner is the only distributee with priority for letters, or if all distributees entitled to service have waived the right to receive a citation.

If petitioner seeks to dispense with service of a citation upon non- domiciliary distributees or distributees whose whereabouts or identity are unknown (See, Section I (B)(3), supra, for more on the scope of a diligent search, and Section I(E)(5)(c), infra for more on dispensing with service of process) the request for relief she should indicate that an order dispensing with service is sought and the grounds for such an order.

The petitioner may request that unrestricted Letters of Administration issue to petitioner or to another eligible person. Alternatively, the petitioner may request that the court issue letters of temporary administration, if appropriate (SCPA 901, et. seq.; see Section II, B, infra), or, if there is no need for broad powers, or if there is a need for a restriction on the administrator’s ability to collect or distribute assets, such as where an administrator’s bond was not practical, Petitioner may seek issuance of limited or restrictive Letters of Administration (SCPA 702; see Section II(C), infra).

2. Notice of Application for Letters of Administration

The Court may require that the petitioner mail a notice of application for Letters of Administration to any distributee who was not required to be served with a citation and who has not appeared in the proceeding or waived service of process (i.e., any person listed on the petition in paragraph 7 (a) or (b) who has a right to Letters of Administration inferior to the petitioner or who was ineligible to serve). SCPA 1005. The notice must contain the names and addresses of all of the distributees, must identify the petitioner and state for whom Letters of Administration are sought. The notice must also state the return date on which Letters of Administration will be granted (assuming jurisdiction is complete and any other required steps have been completed). Although mailing of the notice of application for Letters of Administration is not a jurisdictional requirement, Courts that require a notice of administration generally require the mailing to be made before a decree granting letters will issue. An affidavit of mailing the notice should be filed prior to the time the decree is to be issue (generally, before the return date). See Official Form A-4. The mailing of a notice of administration is discretionary. Matter of Dankerl, 16 Misc 2d 834, 185 NYS2d 477, aff’d, 12 AD2d 678, 207 NYS2d 514.

81 A similar type notice is required where the decedent was, or a distributee is, the subject of a foreign power whose consul is entitled by treaty to administer or intervene. See Official Form A-5.

3. Affidavit of Heirship

If the decedent was survived by no distributees or only one distributee, or if the relationship of the distributees to the decedent is grandparents, aunts, uncles, first cousins or first cousins once removed, proof must be submitted to establish (i) how each distributee is related to the decedent and (ii) that no other persons of the same or a nearer degree of relationship survived the decedent. Uniform Rule 207.16(c). The proof is usually in the form of an affidavit of heirship and it is submitted together with the petition for Letters of Administration. Unless otherwise permitted by the Court, if only one distributee survived the decedent, the affiant can not be the alleged distributee’s spouse or children. Unless the distributee is the spouse or child of the decedent, the affidavit must be accompanied by a family tree or diagram. SCPA 207.16(c). A family tree may also be required where one of the parties upon whom process is to be served derives his status as distributee through another person who is deceased - i.e., the person is issue of a deceased person who would otherwise be a distributee. Uniform Rule 207.16(b).

If the affidavit shows that there may be other relatives as to whom the affiant is unaware, an affidavit of due diligence may also be required. See Section (I)(B)(3), supra, for more on the affidavit of due diligence. You may provide affidavits from more than one person, and it is common for the affidavit of due diligence to be provided by the proposed fiduciary or counsel rather than by the person or persons providing the affidavit of heirship. The affidavit of heirship is like a family tree in narrative form. The affiant should begin by giving his or her own background -- explain how the affiant came by his or her information (i.e., how long and how well the affiant knew the decedent’s family, how often he or she visited the family, list any family events he or she attended, whether he or she knows about the family from personal observations of the family, or was told by family members other than the distributees, etc.). After that, he or she should give the background of the deceased B the decedent’s age, whether he or she lived alone, his or her religion, if known, where he or she was born and grew up, etc. Once the background is established, the affidavit should begin reciting information about decedent’s distributees, starting with the decedent’s closest relatives and branching out from there.

Was decedent married? how often? if widow or widower, what was spouses name and when did he or she die?

82 -- If married, did decedent have any children? If yes, what were their names and dates of birth, or year of birth? Did affiant attend christening, bris or baby naming? Are there any issue of predeceased children? Were these decedent=s only children? Affiant must state whether, to his or her knowledge, decedent had any adopted or non-marital children.

-- List decedent’s mother and father, and, if deceased, when and where.

-- List brothers and sisters, and children of any predeceased brothers and sisters (decedent’s nieces and nephews).

-- List grandparents - maternal and paternal. Indicate if deceased.

-- List aunts and uncles, on maternal and paternal side, and indicate if any are deceased.

-- List cousins (descendants of predeceased aunts and uncles) on maternal and paternal sides. This is the area when the most difficulty in competing the family tree arises. (i.e., the affiant knows that decedent had an aunt who moved away, and knows that the aunt had at least two kids, but doesn’t remember the kids’ names or where they live). If this section can not be completed, the affidavit of heirship must be supplemented by an affidavit of due diligence. See Section I(B)(3)(c), supra, for the affidavit of due diligence.

-- 4. Filing Fee

The amount of the filing fee is listed in the schedule in SCPA 2402(7). The fee is based on the value of the estate as stated in the petition for letters. If the value of the estate as listed on the decedent’s final tax return is greater or less than the amount listed in the petition for letters, the court will make an adjustment to the filing fee and the estate must pay the additional fee in the event of underpayment or will receive a refund in the event of overpayment. SCPA 2402(2).

5. Completing Jurisdiction: Citation or Renunciation and Waiver of Service of Process

a. Persons who must be served

All persons listed in Paragraph 7a and 7b of the Petition who are eligible and have a right to Letters of Administration prior or equal to that of the petitioner are entitled to service of process (i.e., service of a citation), unless the person has appeared (i.e., filed a notice of appearance or filed objections to the petition) or has waived service of process (see below). SCPA 1003 (2). 35

Where the decedent was survived by a child, or by a sibling, or by a niece or nephew, whose whereabouts are unknown, and the unknown is the only person in their respective class, process should generally be served upon the next class of distributees, if they have a right to letters prior or equal to that of petitioner, on the assumption that the missing distributee might have predeceased the decedent. Otherwise, jurisdiction remains subject to later challenge.

If the petitioner is a creditor, or a person interested in an action in which the decedent would be a party, process must also issue to all domiciliary distributees who are incompetent, conservatees and infants for whom a committee, conservator or guardian of the property has been appointed. SCPA 1003(2).

If the person to be served is an infant, process must be served upon the infant’s parents or guardian or person having care and control or custody of the infant (unless such person is the petitioner) and, if the infant is over 14, the infant must be served as well. SCPA 307(3)

Service on Persons under a Disability: If the person to be served is incompetent or a conservatee, process must issue to the committee or conservator and all of the requirements of CPLR applicable to service of process on an incompetent or conservatee must be followed. SCPA 307(4). Generally, for a person confined to an institution, serve the warden or other administrator of the institution.

Some Courts require service of a copy of the citation on a person with whom the incapacitated person resides or a relative, similar to the service requirement under the mental hygiene law. Although this service is not required by statute, the Courts may require it before they will issue a decree, and you should check with the administration department to see if such service is required in the Court in which you are filing.

Designee to Receive Citation for Persons Under a Disability: If a person required to be served with process is under a disability (i.e., an infant, incompetent or person confined to an institution), the court may also designate a person who is to receive citation on behalf of the person under a disability. SCPA 311. Upon the return date, the designee is generally appointed as guardian ad litem for the person under a disability, unless it is determined that no disability in fact exists (or in the case of an infant over the age of 14, the infant may request the appointment of a specific attorney). SCPA 403. In practice, little distinction is made between a person designated to receive citation before the return date and the person appointed as guardian ad litem after the return date, and the term guardian ad litem is often used to refer to both. If the Public Administrator is to receive citation or notice on behalf of the person under a disability, the court may dispense with appearance by a guardian as litem. 36

Persons Alleged to be Deceased: If the petition seeks Letters of Administration of the estate of a person alleged to be deceased, process must issue to the alleged decedent and to all his presumed distributees. SCPA 1003(1).

Service on Posthumous Child Conceived by Artificial Means: Service of process on a Genetic Child as defined in EPTL 4-1.3 is not required unless such child is in being at the time process is served. EPTL 4-1.3(e).

The Public Administrator may be cited where it appears that some of decedent’s distributees are unknown, or where petitioners are first cousins or more remote distributees. Note that although the Public Administrator need not be cited in all administration proceedings involving unknown distributees (and often service of process on such individuals is dispensed with), the Public Administrator is generally required to be served in any accounting proceeding involving unknown distributees. SCPA 1215 (1) (a), (b).

The attorney general must be served when it appears that the decedent was not survived by any distributee, or it is not know whether the decedent was survived by a distributee.

The Citation: The requirements for a citation are set forth in SCPA 306. Generally, the form of citation should be prepared by the attorney, with the exception of the return date, which is filled in by the court clerk. The citation should include: the names of all distributees or other persons to be cited (these are listed at the top of the citation, without specifying the persons address); the names and domiciles of both the decedent and the petitioner; the entire relief requested in the wherefore clause of the petition; and the name, address, telephone number and signature of petitioner’s attorney. Note that the return date should be far enough in the future to allow for completion of service, but may not be more than 4 months after the date of issuance.

Time for Service: Process must be served at least 10 days before the return date if the person to be served is in New York, and 20 days before the return date if the person to be served is outside New York but within the United States or its territories, and 30 days before the return date in all other cases. SCPA 308.

Procedure: For the procedure for serving process and submitting proof of service of process, see SCPA 307-314. Generally, service of process on a New York State domiciliary must be by personal service. SCPA 307 (1). Substitute service on a domiciliary may be requested if the domiciliary cannot be personally served after diligent attempt. The degree of diligence required will depend upon the size of the estate and the degree of relationship of the person to be served. SCPA 307 (2). Service upon non-residents may be made by registered or certified mail, 37

85 return receipt requested, or by special mail service, without court order. SCPA 307 (1) and (2)(b). Matter of Marie Worms, NYLJ, Dec. 9, 1997 at 26, col. 4 (Sur. Ct., NY Co.). Service by special mail service requires mailing by express mail or use of any designated delivery service within the meaning of Section 7502(f)(2) of the US Internal Revenue Code (including fed ex, DSL, etc). Service upon unknowns (which is often dispensed with in an administration proceeding) is generally by publication.

b. Waiver of Process

If a person with a right to Letters of Administration prior or equal to that of petitioner does not wish to serve, he or she may file an acknowledged renunciation of letters and waiver of service of process. SCPA 1003 (3). Any person (other than the Public Administrator, who must seek court approval) may freely renounce the right to Letters of Administration.

c. Dispensation of Service of Process on Unknowns and Nondomiciliaries

The court may dispense with service of process where it appears that the name or whereabouts of the individual cannot be ascertained after diligent inquiry, provided that the decree granting Letters of Administration must specify that upon the judicial accounting of the administrator, process must issue to the unknown or un-located distributee. SCPA 1003(4). The petition must list the unknown and unidentified distributees and petitioner must submit the affidavit of due diligence required by Uniform Rule 207.16(d). See Section I (B)(3), supra, for more on the contents of the affidavit and scope of a diligent search.

The court may also dispense with service of process on a nondomiciliary distributee (SCPA 1003[2]).

6. Concluding the Proceeding: The Decree

The Decree in unopposed petition is often prepared by the court on its own form, although the Court may provide a sample form decree for the attorney to complete. If special relief has been requested, the petitioner may submit his or her own form of decree following the general form as it appears in the official forms (Form A-6). Any restrictions or limitations on letters will be contained in the actual decree and will also be reflected in the text of the Letters of Administration.

Notice of Settlement: If anyone other than the petitioner has appeared in the proceeding, the proposed decree (prepared by petitioner’s counsel) must be settled on notice to all parties who appeared, i.e., the proposed decree, together with notice of settlement of the decree, must be served on all parties, and the notice, together with proof of service, must be submitted to the court with the proposed decree. If served personally, the notice of 38

86 settlement must be served not less than 5 days before the day selected for settlement. If served by mail, not less than 10 days before the day of settlement. Uniform Rule 207.37. The date selected for settlement of the decree need not coincide with a date on which the court calls its calendar, since the court will not hear arguments concerning which version of the decree is to be signed. The reason for notification of settlement of the decree is to afford other parties the opportunity to submit a counter decree if they believe that the decree does not accurately reflect the relief that the court granted. If a counter decree is submitted, it must be served personally on all parties at least 2 days before settlement date, 7 days if by mail.

Notice of Entry: After the decree is signed, a signed copy of the decree, with notice of its entry by the clerk of the court, should be served upon all parties who appeared.

For courts in the New York metropolitan area, notice of the signing of a decree is published in the New York Law Journal under the court decisions (the name of the decedent is listed under a general heading of “decrees signed.”

After the decree is signed, the attorney for the petitioner or appointed administrator should obtain Letters of Administration and should purchase certificates of letters from the cashier’s office in the court. The certificate is evidence of the administrator’s authority to act and is used to collect assets. Certificates currently cost $5.00 per certificate.

87 II. ALTERNATE FORMS OF ADMINISTRATION

A. VOLUNTARY ADMINISTRATION (A/K/A SMALL ESTATE ADMINISTRATION)

1. What is Voluntary / Small Estate Administration?

Voluntary Administration is a simple and cost effective method of administering an “estate” valued at $30,000 or less (whether or not the decedent died before or after the statutory amendment – see, e.g., Matter of Garrick, 26 Misc. 3d 789, 894 N.Y.S.2d 836 (Surr. Ct. N.Y. Co. 2009); SCPA 1301. For purposes of voluntary administration, an “estate” consists of personal property only and excludes property set off to the surviving spouse or minor children under EPTL 5-3.1 as well as any non-testamentary assets such as joint accounts, trusts accounts, U.S. Savings Bond payable on death and other jointly held personal property which passes by operation of law to the named beneficiary (SCPA 1301, 1302). Transfer on Death Securities (EPTL 13-4), which are also intended to pass by operation of law, are also likely excluded, although they are not specifically listed in SCPA Article 13. The section is not applicable to real property. SCPA 1302.

For practical purposes, this means that a voluntary administration may be commenced where a person dies with or without a Will and leaves personal property that is probate property with a value less than $30,000 (or, if the decedent died leaving a spouse or minor children, he or she may have $30,000 in personal property plus an additional $25,000 and other personal property listed in EPTL 5-3.1). A person who dies with a Will and any real property must commence a probate proceeding, since real property cannot be administered through a small estate proceeding.*

Voluntary administration is permissive, not mandatory. SCPA 1309. It is available whether the decedent died testate or intestate. Unlike administration or probate, the voluntary administrator does not receive compensation for his or her services.

Voluntary administration may not be appropriate where the estate may have a cause of action for personal injury to the decedent or wrongful death, as a voluntary administrator can not commence such actions and the proceeds of such an action would lilely exceed the dollar threshold for voluntary administration. SCPA 1306(3). See Squires v. Lephrology Foundation of Brooklyn, Inc., NYLJ, Jan. 18, 2000, at 40, col. 3 (EDNY 2000).

2. Who May Serve as Voluntary Administrator

In order to serve, the person must be “eligible,” which here means adult and competent, and be “entitled” which means that he or she falls within a class having priority to serve. No person other than those statutorily designated may serve as voluntary administrator (i.e., unlike regular administration, eligible persons may not designate a voluntary administrator). SCPA 1303 (c). See Matter of Ortega, 14 Misc3d 312, 823 NYS2d 884

88 (Surr. Ct. N.Y. Co. 2006) (neither personal representative of deceased distributee nor designee of a distributee may serve as voluntary administrator).

a. Intestacy:

If the decedent died intestate, the following persons or class of persons are entitled to serve, in the following order of priority (SCPA 1303[a]):

1. Surviving spouse; 2. Child or grandchild; 3. Parent, brother or sister; 4. Niece, nephew, aunt or uncle; 5. Guardian of the property of an infant distributee, Committee of the property of an incompetent distributee or Conservator of the property of conservatee who is a distributee; 6. The Public Administrator (or, if there is no Public Administrator in the County in which the proceeding is venued, the Chief Fiscal Officer of the County).

After the surviving spouse, the first distributee within a class entitled to serve to file the required affidavit is authorized to act as voluntary administrator. If the surviving spouse does not wish to serve, he or she may execute a renunciation of voluntary administration (see the Forms at the end of the outline).

b. Testacy

The nominated executor or alternate executor may serve. If the nominated or alternate executor renounces or fails to qualify within thirty days after the will is filed in the Surrogate’s Court, then any adult person who would be entitled to apply for Letters of Administration with will annexed under SCPA 1418 may serve. SCPA 1303 (b).

3. How to Commence a Voluntary Administration Proceeding

A small estate administration proceeding is commenced by the filing of an Affidavit in Relation to Settlement of Small Estate, together with a certified copy of decedent’s death certificate and, if decedent died testate, the original will or codicil and any renunciation by a person with a prior right to serve as administrator. SCPA 1304(3). The affidavit must list decedent’s distributees and, if decedent died testate, the beneficiaries in the will or codicil. The affidavit must also identify and value the “estate” property (excluded property need not be identified) and any estate liabilities. The affidavit must be signed by the voluntary administrator in the presence of a notary public. The affidavit should be filed in the county of decedent’s domicile at the time of his or her death, or the county in which a non-domiciliary decedent left property. (SCPA 205, 206, 1304). The 41

89 administrator does not need to obtain a bond. SCPA 1304(2). A filing fee of $1 will be charged, and the clerk will notify the distributes and beneficiaries of the proceeding by postcard. SCPA 1304(4).

The Court may require evidence of the proposed administrator’s relation to the decedent, and may require compliance with Uniform Rule 207.16. See Section I(B)(3)(b), supra.

For record-keeping purposes, the voluntary administrator should keep copies of all of the documents filed in Court, with the appropriate care taken in copying any will or codicil not to remove the binding/staples from the original.

The forms required for a small estate proceeding can be obtained online at http://www.courts.state.ny.us, and, if you are a member of the Trusts and Estates section of the NYSBA, the complete set of official forms can be purchased and downloaded from the Trusts and Estates Section page of the NYSBA web site at http://www.nysba.org

4. Administering the Estate

Upon filing the affidavit, the Clerk will provide the administrator with a short Certificate of Voluntary Administration. SCPA 1304(5). The Clerk may provide one Certificate listing all of the assets on the voluntary administration affidavit or a Certificate for each asset listed in the affidavit. The administrator presents the Certificate to the bank, trust company or other holder of estate property, together with a receipt for the property if one is requested, in order to collect the assets. SCPA 1304(5), 1305. Presentation of the Certificate and receipt will serve to discharge the asset-holder from liability for turning over assets to the voluntary administrator. SCPA 1305. If additional Certificates are required, the administrator must submit an affidavit explaining the reason for the request. Uniform Rules ' 207.46 Note that if assets are discovered that cause decedent’s estate to exceed $30,000, a formal administration or probate proceeding may be required.

Other than the use of short form Certificates, a voluntary administrator collects the decedent’s assets and pays decedent’s debts and administration expenses in generally the same manner as in any other estate administration. SCPA 1307.* The voluntary administrator has the same general powers as an administrator, except that the voluntary administrator does not receive compensation and can not enforce a claim for wrongful death or personal injuries to the decedent. SCPA 1306. Also, a voluntary administrator does not have power to distribute or dispose of the decedent’s real property (see, e.g., SCPA 1901[3]), as to which title vests in decedent’s distributees by operation of law).

* The former method of collecting assets, which required the administrator to obtain certified copies of his or her Affidavit of Voluntary Administration, and required the holder of assets to endorse on the certified copy the amount of the assets transferred to the administrator, was repealed by L. 1999, ch. 168, effective July 6, 1999.

90 The powers of the voluntary administrator cease upon appointment of another fiduciary of the estate. SCPA 1306.

If decedent died testate, a person otherwise entitled to object to the will (SCPA 1410) may do so in the course of the voluntary administration. SCPA 1307.

5. Completing Voluntary Administration

Once the administrator is certain that all estate expenses and debts of the decedent have been satisfied, the administrator must distribute the remaining assets to the persons entitled thereto in accordance with decedent’s will or, if decedent died intestate, pursuant to EPTL 4-1.1.

The administrator is required by statute to account by filing a Report and Account of Settlement of Estate, indicating the assets collected, expenses paid and distributions made. SCPA 1307(2); Official Surrogate’s Court Form SE-1D). Canceled checks or receipts evidencing payments or distributions are also required to be submitted with the account. Alternatively, the administrator can obtain receipts and releases from the beneficiaries, which obviates the need to attach other documentation. An informal release letter can be used instead of the typically long release agreement. The letter should enclose a copy of the draft Report (and should indicate that the draft Report is enclosed), should state the dollar amount that the administrator intends to distribute to the recipient and indicate that if the recipient approves of the enclosed Report, he or she should sign a second copy of the letter (which should be enclosed with a self-addressed envelope), which will serve to release and discharge the voluntary administrator for his or her actions in administering the decedent’s estate. The letter might also request that the recipient accept the distribution subject to repayment to the administrator in the event additional estate expenses are incurred.

In practice, as in other types of administration, most Courts do not enforce the accounting requirement. If no accounting is rendered, an interested party could compel the voluntary administrator to account, and the administrator would remain liable to those parties until his or her account is filed.

91 B. TEMPORARY ADMINISTRATION

Temporary administration may be granted when it is in the best interests of the estate and when, for any reason, there is delay in the grant of letters on the estate of a decedent * or of a person alleged to be deceased, or where a person with property in New York has disappeared and is absent from his or her residence without being heard from after diligent inquiry (an “absentee”). SCPA 901. See Matter of Cavallo, N.Y.L.J. Dec. 21, 2001, at 26 (Surr Ct. Richmond Co.) (Court appointed a temporary administrator sua sponte where allegations of fraud and undue influence showed need for an impartial party). Temporary administration is discretionary with the court, and petitioner must show a real need for such administration. Matter of Larsen, 137 Misc. 271, 242 NYS 486. See also, Matter of Walker, N.Y.L.J. Mar. 6, 2009, at 29 (Surr. Johnson) (where there were serious allegations concerning both petitioner and cross-petitioner for administration, and real property needed administration, Court appointed Public Administrator as Temporary Administrator). When the need exists, letters of temporary administration may be granted even before a probate or administration proceeding is commenced. SCPA 902(2); Matter of Chittenden, 76 Misc. 92, 136 NYS 953.

1. Petition

A petition for letters of temporary administration may be commenced by any person interested in the estate of the decedent or absentee (SCPA 103[39]), any person who would have an interest in the property of the decedent or absentee if he or she were dead, the Public Administrator, County Treasurer, a creditor of the decedent or absentee or a person interested in an action in which the decedent or absentee would be a proper party. SCPA 902(7).

2. Process

If an administration proceeding is pending, process issues to such persons and in such manner as directed by the Court. SCPA 902(1). If no administration proceeding is pending, process is issued to the persons who would be entitled to receive process on an application for Letters of Administration. SCPA 902(2)(a). In either case, the court may dispense with service of process if it finds that doing so would be in the best interests of the estate. SCPA 902(5).

* Although it is also possible to obtain letters of temporary administration when decedent died testate (SCPA 902[1], 2[a]), in most cases the need for expedient estate administration can be met with an application for preliminary letters testamentary. It is also possible to obtain letters of temporary administration of the property of a prisoner or an individual who is made a prisoner of war or has been detained or interned by an enemy country or in a foreign country, and is thereby unable to safeguard his or her property in this state. Generally, this discussion is limited to temporary administration of an intestate decedent or absentee. 44

92 In the case of an absentee, process issues to the absentee and to the persons who would be his or her distributees if he or she had died on the date of the filing of the petition for letters. SCPA 902(3).

3. Immediate Letters for Absentee

After the citation has been issued, and it has been established to the court’s satisfaction that the estate requires immediate supervision or action by a fiduciary, the court can immediately appoint a temporary administrator for a period of up to six months. SCPA 902(6). During the period in which the temporary administrator is acting before a decree appointing him or her (i.e., if an immediate appointment is made before the return date of the citation), he or she does not receive commissions, but may receive such compensation for his or her services as the Court determines (not to exceed statutory commissions). SCPA 902(6). The temporary administrator can apply for an extension of his or her letters after the expiration of the six month period. It is observed that the same immediacy may be obtained in the case of a decedent if the court is persuaded to dispense with service of process upon interested persons, as permitted by SCPA 902(5).

4. Powers of the Temporary Administrator

A temporary administrator has all of the powers and authority over the real and personal property of a decedent or absentee, and is subject to all of the duties and liabilities, of an administrator, except that the temporary administrator may not pay or satisfy any intestate share. SCPA 903(1). The court has discretion to severely limit the powers of the temporary administrator in any way necessary to protect the property rights of all persons who have an interest in the property, including limiting the letters to the receipt of specific assets that require administration and no others. SCPA 903(4). A creditor may commence a proceeding to compel the temporary administrator to pay the creditor’s claim against the decedent or absentee. SCPA 906. A temporary administrator whose powers are not restricted may commence an action to collect or preserve the decedent or absentees property. SCPA 905. With respect to a temporary administrator of an absentee, the administrator may make application for an order permitting him or her to make a distribution to the absentee’s spouse, child or dependent presumptive distributee for his, her or their benefit, health, maintenance, clothing or education. SCPA 907. The temporary administrator may also make an application to the court for permission to expend the absentees assets in efforts to locate the absentee.

5. Accounting of the Temporary Administrator

With respect to a decedent’s estate, the court, at any time, upon its own directive or upon petition of a person interested, a public administrator, county treasurer, or creditor, may direct the temporary administrator to account. SCPA 908(1). Upon such an accounting, the Court may direct the temporary administrator to pay decedent’s funeral and burial expenses and direct ratable distribution of the estate to pay decedent’s debts, and may 45

93 direct the temporary administrator to retain the excess or direct that the excess be deposited in court. SCPA 908(2).

With respect to an absentee, if at any time it appears that the absentee is dead, the temporary administrator or a person interested may petition for probate or for Letters of Administration or for a judicial determination of the fact of death. If the court finds that it is in the best interest of the estate, and accounting and distribution may be directed without the issuance of permanent letters. SCPA 911(1). If, before a distribution is made, the absentee or his duly appointed fiduciary appears and claims the property, the temporary administrator must account to the absentee or his or her fiduciary and pay over the assets to him or her. SCPA 911(2). Generally, if the absentee is not heard from within five years after the date he or she was last heard from, the court may direct an accounting and determine that the absentee no longer has an interest in his or her property, and may direct distribution of the absentee’s property to those who would be entitled thereto (i.e., in accordance with the absentees will or in intestacy). SCPA 911(3); Matter of Aveena, NYLJ, Dec. 28, 1992, at 31, col. 6 (Sur. Ct. Bronx Co.).

C. LIMITED AND RESTRICTIVE LETTERS

1. General Limitations on Fiduciary’s Powers

Letters testamentary and of administration confer broad power on the fiduciary. They also impose liability for any assets collected. In many cases there is no need for a broad grant of powers, or the grant of unlimited power is undesirable (i.e., the fiduciary seeks to avoid posting a bond for all of decedent’s assets). In those cases, the court may appoint a fiduciary whose authority is limited to the performance of a specific act or acts in furtherance of the interests of the estate, or a third party whose own interests require participation of an estate representative.

The petition for limited letters is the same as that for general Letters of Administration. If a fiduciary has already been appointed, it may be unnecessary to serve process on other interested parties, as the fiduciary, once appointed, generally serves as the representative of the interested parties.

Limited letters may be in addition to unrestricted letter, and more than one set of limited letters may be issued. SCPA 702.

Limited letter may restrict the powers of the administrator to:

- enforcing or prosecuting a cause of action, or defense of a cause of action, while restricting the administrator from compromising the cause of action or enforcing any judgment recovered until further order of the Court (i.e., in wrongful death actions and personal injury actions) (SCPA 702(1)); 46

- adjustment or settlement of a claim, or performance of an act required to discharge the estate from liability, or appearance in an action in which the decedent was a party (SCPA 702(3),(4), (7));

- to account for the decedent for his or her performance of any trust, or to complete a transfer made by the decedent, and any incidental paperwork (SCPA 702(5)(6));

- where it is impractical to give a bond in the full amount required by statute, the administrator may be limited to administering only the assets the court specifies, and restricted from collecting and administering other assets until further order of the Court (at which time an additional bond may be required) (SCPA 702(2));

- any other purpose or act deemed by the court to be appropriate or necessary in respect of the affairs of the estate, the protection of the estate or the proper administration of the estate (the “catchall” provision)(SCPA 702[10]).

2. Limited Letters where Conflict of Interest Prevents Fiduciary from Acting

Although the catchall provision permits the court to issue limited letters whenever necessary, the legislature added two additional sections to SCPA 702 to expressly indicate two situations where letters should be permitted (see Second Report of the EPTL-SCPA Legislative Advisory Committee, reprinted in McKinney’s 1993 Session Laws, at 2237).

Where the administrator can not or should not act in a fiduciary capacity because of a conflict of interest, or is reluctant to act due to potential claims of self-dealing (i.e., where an administrator or a relative of the administrator wishes to purchase an asset from the estate), the court may issue limited letters to another individual to represent the estate in the transaction. SCPA 702(8). See Matter of Richardson, N.Y.L.J., June 24, 2004, at 27 (Surr. Ct. N.Y. County 2004).

95 Limited letters may also be granted to commence and maintain an action against the fiduciary or against anyone else against whom the fiduciary fails or refuses to bring such a proceeding (i.e., where the fiduciary is also the surviving joint tenant on a bank account, or where the fiduciary refuses to bring a wrongful death action on behalf of the distributees). SCPA 702(9); see, e.g., Matter of Leach, 2010 Slip Opinion 51015 (U) (Surr. Ct. Bronx Co.); Matter of Green, NYLJ, Feb. 21, 1995, at 29, col. 2 (Sur. Ct. Bronx Co.) (limited letters issued to decedent’s daughter to pursue contention that judgment of divorce and/or equitable distribution should be entered in Supreme Court, where decedent died prior to entry of judgment); Matter of Teah, 166 Misc2d 976, 636 NYS2d 1000 (Sur. Ct. Bronx Co. 1996); Matter of Vasquez, 162 Misc2d 184, 616 NYS2d 423 (Sur. Ct. NY Co. 1994).

3. Limited Letters in Other Situations

Letters may also be issued under the catchall provision (SCPA 702[10]) wherever the fiduciary for any other reason has neglected his or her duties. Limited letters will not be issued under SCPA 702 until the Will is admitted to probate where there is no allegation of impending harm due to a nominated fiduciary’s action or inaction. Matter of Stoller, 780 N.Y.S.2d 861 (Surr. Ct. N.Y.County 2004).

In one case, limited letters were issued for the sole purpose of executing HIPPA- compliant medical authorization where the court had granted preliminary letters testamentary but the nominated fiduciary failed to qualify for letters by failing to post a bond, and the release was necessary to obtain hospital records to conduct a 1404 examination.

4. Lifting the Restriction

Generally, where letters are restricted, the court will require the administrator to return to court to lift the restriction before the asset can be collected and/or distributed, at which time the court may require a bond in the amount of the assets to be collected.

A proceeding to lift restrictions contained in limited letters is a miscellaneous proceeding that is commenced by petition, generally on notice to all persons interested in the estate in accordance with the provisions set forth in SCPA 2101.