Chapter 3 PROBATE PROCEEDINGS - lexisone.com · § 3.21 Obtaining Letters of Administration, c.t.a....

Chapter 3

PROBATE PROCEEDINGS

Synopsis

PART A: PROCEDURAL CONTEXT

§ 3.01 Procedural Context—Probate Proceedings

PART B: INITIATING PROBATE PROCEEDING

§ 3.02 Checklist for Initiating Probate Proceeding

§ 3.03 Determining Who May Offer Will for Probate

§ 3.04 Preparing Probate Petition

§ 3.05 Filing Additional Documents Necessary for Probate

PART C: SERVING PROCESS AND NOTICE

§ 3.06 Checklist for Serving Process and Notice

§ 3.07 Preparing and Serving Citation

[1] Determining Who Must Receive Citation[2] Including Required Contents in Citation[3] Serving Citation

§ 3.08 Sending Notice of Probate

[1] Determining Who Must Receive Notice of Probate[2] Including Required Contents of Notice of Probate[3] Mailing Notice of Probate

PART D: NAVIGATING THROUGH PROBATE PROCEEDING

§ 3.09 Checklist for Navigating Through Probate Proceeding

§ 3.10 Obtaining Court Examination of Attesting Witnesses

§ 3.11 Excluding Attesting Witnesses from Examination by Court

[1] Excluding Attesting Witnesses from Examination by Courtby Producing Self-Proving Affidavit

[2] Dispensing with Examination Where Attesting Witness IsDead, Absent from State or Incompetent

[3] Ignoring Testimony of Hostile or Forgetful AttestingWitness

§ 3.12 Examining Interested Parties

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[1] Determining Who May Be Examined[2] Determining Who Is Entitled to Examine Witnesses[3] Determining When Witnesses May Be Reexamined[4] Keeping Examinations Within Limited Scope[5] Determining Time and Place of Examinations[6] Recording Testimony[7] Determining Responsibility for Examination Costs

§ 3.13 Proving Lost or Destroyed Will

§ 3.14 Proving Nuncupative or Holographic Will

§ 3.15 Filing Objections

[1] Determining Who May File Objections[2] Considering Form and Timing of Objections[3] Including Proper Allegations Within Objections

§ 3.16 Giving Notice and Serving Citation Upon Filing of Objections

[1] Determining Who Must Receive Notice of Objections andCitation

[2] Including Required Contents in Citation[3] Serving Citation

§ 3.17 Obtaining Decree

[1] Meeting Prerequisites for Issuance of Decree[2] Including Required Contents in Decree

PART E: OBTAINING LETTERS TESTAMENTARY

§ 3.18 Checklist for Obtaining Letters Testamentary

§ 3.19 Obtaining Letters Testamentary

[1] Determining When and to Whom Letters TestamentaryMay Issue

[2] Obtaining Supplemental Letters[3] Renouncing or Failing to Qualify As Executor

§ 3.20 Obtaining Preliminary Letters Testamentary

[1] Determining If Preliminary Letters Testamentary MayIssue

[2] Determining Who May Petition for Preliminary LettersTestamentary

[3] Preparing Petition for Preliminary Letters[4] Meeting Other Requirements for Obtaining Preliminary

Letters

3–2NEW YORK SURROGATE’S COURT



[5] Understanding Powers and Duties of PreliminaryExecutor

[6] Revoking Preliminary Letters Testamentary

[7] Obtaining Commissions for Preliminary Executor

§ 3.21 Obtaining Letters of Administration, c.t.a.

[1] Determining If Letters of Administration c.t.a. AreAppropriate

[2] Determining Who May Receive Letters of Administration,c.t.a.

[3] Preparing Petition

[4] Serving Citation

[5] Determining If Court May Refuse to Issue Letters ofAdministration, c.t.a.

PART F: INTERPRETING WILL PROVISIONS THROUGH CONSTRUCTION PROCEEDINGS

§ 3.22 Checklist for Interpreting Will Provisions Through Construction Proceeding

§ 3.23 Obtaining Jurisdiction of Surrogate’s Court to Construe Will

§ 3.24 Determining If Construction May Be Made

§ 3.25 Bringing Contruction Proceeding

[1] Initiating Construction Proceeding

[2] Giving Notice

[3] Determining Choice of Law

PART G: DETERMINING VALIDITY OF ELECTION BY SURVIV-ING SPOUSE

§ 3.26 Checklist for Determining Validity of Election by SurvivingSpouse

§ 3.27 Considering Relationship Between Estates Powers and Trusts Law and Surrogate’s Court Procedure Act

§ 3.28 Obtaining Court Determination of Validity of Election

[1] Determining Who May Petition

[2] Preparing Petition and Giving Notice

[3] Obtaining Jurisdiction over Property Not in Possession ofFiduciary

PROBATE PROCEEDINGS3–3



PART A: PROCEDURAL CONTEXT

§ 3.01 Procedural Context—Probate Proceedings

Probate is the process of proving and receiving court recognitionthat a decedent’s Will is valid. If the Will was executed inaccordance with the law by a testator who was competent to makea Will and who was not under any restraint, then the court willadmit the Will to probate as a valid Will for the purpose of passingreal and personal property. See SCPA § 1408. SCPA Article 14governs the probate proceeding, which begins when a petition toadmit the Will to probate is filed with the Surrogate’s Court inthe county where the decedent was domiciled at death. Proceduresfor proving a Will including requirements for the examination ofattesting witnesses and for proving lost, holographic and nuncupa-tive Wills are provided.

In some instances, it may be inappropriate to offer a Will forprobate. For example, if there are no probate assets, if a small estateadministration proceeding would be sufficient to administer theprobate assets that do exist or if disposition by the Will does notvary from what would occur by operation of law, then the Willshould not be offered for probate.

SCPA Article 14 also provides for the following: procedures forthe issuance of preliminary letters testamentary and letters ofadministration, c.t.a. (with the Will annexed); proceedings govern-ing the construction of a Will and proceedings to determine thevalidity of an election by a surviving spouse.

3–4NEW YORK SURROGATE’S COURT§ 3.01



PART B: INITIATING PROBATE PROCEEDING

§ 3.02 Checklist for Initiating Probate Proceeding

M Determine who may offer will for probate. SCPA § 1402.See § 3.03 below.

M Include required information in probate petition. SCPA§ 1402. See § 3.04 below.

M File required documents with probate petition. See § 3.05below.

Documents include death certificate, original will andcodicils, copy of will and affidavit of comparison,affidavit of attesting witnesses, attorney certification,notice of probate, oath of testamentary trustees, filingfee, and self-addressed stamped envelope.

File waiver and consent for each party waiving serviceof citation.

File citation if there are necessary parties who have notsigned waiver and consent.

File affidavit of heirship and family tree in certaininstances. 22 NYCRR § 207.16

§ 3.03 Determining Who May Offer Will for Probate

Pursuant to SCPA § 1402, any of the following people maypetition the Surrogate’s Court for probate of a Will:

1. A person named in the Will as a legatee, devisee, fiduciary,or guardian;

2. The guardian of an infant legatee or devisee;

3. The guardian, committee, or conservator of an incompetentor incapacitated legatee or devisee;

4. A creditor of the decedent;

5. The fiduciary of a deceased sole beneficiary or of a deceasedresiduary beneficiary; see SCPA §§ 1402(1)(b) and 1418;

6. Any person interested in the estate or the fiduciary of anydeceased person interested in the estate;

§ 3.03PROBATE PROCEEDINGS3–5



7. Any party to any action brought or about to be brought inwhich the decedent, if living, would be a party; and

8. The public administrator or county treasurer, but only onorder of the court, provided that the Will has been filed withthe court and a proceeding for its probate has not beeninstituted.

An interested person in the estate includes a beneficiary’srepresentatives, fiduciaries, assignees and a distributee taking underthe laws of intestacy.

The court, either on its own, or on the petition of any personauthorized to present a petition for the probate of a Will, may orderany person reasonably believed to have knowledge of the where-abouts of a Will or destruction of a Will to appear in court andbe examined. The court may also order that person to produce andfile in court a Will of the decedent that is in the control of suchperson. See SCPA § 1401.

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts § 41.02.

● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1401.01, 1401.02, 1401.03, 1401.04, 1402.03.

● New York Practice Guide: Probate and Estate Administra-tion §§ 5.01, 7.01 (probate petition).

● Second Report of the EPTL-SCPA Legislative AdvisoryCommittee, Leg. Doc. (1993), No. 2, pp. 26–27.

§ 3.04 Preparing Probate Petition

The probate petition must be verified and must satisfy therequirements of SCPA §§ 304 and 1402, including:

1. The name, citizenship and domicile of the petitioner andthe decedent;

2. Additional names by which the decedent was known;

3. Date and place of death of the decedent;

4. A description of the Will and any codicil being offered forprobate, and any other will of the same testator on file with




the court, including the dates of execution and the namesof all witnesses;

5. The name, relationship, domicile and mailing address of allparties required to be cited or to whom notice must issue,including distributees, legatees, devisees, fiduciaries namedin the Will and persons adversely affected by probate ofthe Will;

6. If a party’s interest arises through the death of a primarylegatee, a statement explaining the party’s interest and hisor her relationship to the decedent and to the deceasedlegatee;

7. An estimate of the value of decedent’s probate estate thatpasses under the Will;

8. An affirmation by the petitioner that no other Will or codicilof the decedent is on file in the court and that after a diligentsearch no subsequent instrument was found; and

9. A verification of the petition, a designation of the clerk forservice of process and, if the petitioner is also the nominatedexecutor, an oath of the nominated executor.

t Warning: If beneficiary’s or fiduciary’s name at thetime of probate is different from the name listed in the Willdue to either a misspelling, change of name, or otherwise,then an explanation regarding the name change should beincluded in the petition.

PRACTICE RESOURCES:


● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1402.01, 1402.02, 1402.05.

● New York Practice Guide: Probate and Estate Administra-tion § 7.01.

● Bender’s Forms for the Civil Practice Form No. SCPA1402:1 (Official Form P-1, Petition for Probate).




● See Probate Proceeding Checklist (P-CHKLST), Surro-gate’s Court Checklists, at www.courts.state.ny.us/forms.surrogates/pdfs/fouth_checklists.pdf.

● See SCPA § 1402(2); 22 NYCRR § 207.16(a).

§ 3.05 Filing Additional Documents Necessary forProbate

In addition to the petition, the following must also be filed withthe court:

1. A certified death certificate. See 22 NYCRR § 207.15(b).If the petitioner alleges that the testator has disappeared andis believed to be dead, the Surrogate has the power, afterhaving taken proof of the facts, to issue a decree determiningthat the individual is dead and admitting the Will to probate.See SCPA § 1408(3). The court must first conduct a hearingto review the search conducted for the decedent and the factssurrounding his or her death as prescribed by EPTL § 2-1.7.

2. The original will and any codicils. See 22 NYCRR§ 207.19(a). If the Will offered for probate is on file in acourt or public office and cannot be removed or must bereturned to such other jurisdiction, the court may be satisfiedwith either (a) a duly certified or authenticated copy of theWill from the court where the original is filed, or (b) thetemporary production of the Will by a representative of theforeign jurisdiction. See SCPA § 1404(2); In re Carter, 123Misc. 2d 940, 475 N.Y.S.2d 230 (Sur. Ct. Yates County1984) (admitting to probate a certified copy of a Will whenoriginal was on file in a Florida probate court). In such acase, the decree admitting the Will to probate must recitethe full text of the Will. See SCPA § 1404(2).

t Warning: Practitioners should not remove staples froman original Will when photocopying the Will. Evidenceof the removal of staples creates a presumption of tamper-ing with the Will. If the staples are removed, the petitioner




must provide the court with an affidavit explaining thecircumstances at the time the probate petition is filed.

3. A copy of the Will and any codicils thereto along with anAffidavit of Comparison stating that the copy is a true copyof the original. See 22 NYCRR § 207.19(a) and OfficialForm P-13 (Affidavit of Comparison).

4. If the Will is in a foreign language, a court-certifiedtranslation of the Will.

5. A copy of any agreement creating a revocable trust to whichthe decedent’s assets are directed to be distributed pursuantto the terms of the decedent’s Will.

6. An Affidavit of Heirship with Family Tree. See 22 NYCRR§ 207.16(c); Official Form FT-1 (Family Tree). If thedecedent was survived by only one distributee or no distrib-utees, or if the distributees are grandparents, aunts, uncles,first cousins, or first cousins once removed from the dece-dent, the petitioner must provide the court with an Affidavitof Heirship and a Family Tree executed by a person whodoes not have an interest under the Will.

7. Affidavit of Attesting Witnesses. See SCPA § 1406; Offi-cial Form P-3 (Affidavit of Attesting Witness).

8. A copy of the trust document or other instrument creatingany power of appointment exercised in the Will. See 22NYCRR § 207.19(d).

9. Attorney Certification. See 22 NYCRR § 207.4(b). OfficialSurrogate’s Court Forms produced on computers or wordprocessors must be accompanied by an affidavit by theattorney stating that all forms submitted to the court are thesame as the official forms and that the substantive text hasnot been altered.

10. Affidavit of Sole Attorney/Fiduciary. See 22 NYCRR§ 207.16(e). If an attorney is acting as the sole executor,the attorney must file an Affidavit of Sole Attorney/Fiduciary stating that he or she is the sole executor andindicating whether he or she or the law firm with which




he or she is affiliated will act as counsel. The affidavit mustalso state whether he or she was the attorney draftspersonof the Will.

11. Attorney Disclosure Acknowledgment. See SCPA § 2307-a.If the attorney-draftsperson is the nominated executor underthe Will, the attorney-draftsperson must disclose to thetestator that he or she may receive attorney’s fees as wellas full statutory commissions for acting as executor. Thetestator must acknowledge such disclosure in writing andthe written acknowledgement must be filed in court as partof the probate proceeding; otherwise, the commissions ofthe attorney-executor will be limited to one-half of thestatutory amount.

12. Waiver of Commissions. If the nominated executor hasagreed to waive statutory commissions in whole or in part,or if the Will restricts commissions, the nominated executormay be required to file an affidavit confirming his or heragreement to act subject to the agreed upon commissionsor the commissions allowed by the Will.

13. Waiver and Consent for each party waiving service ofcitation. See Official Form P-4 (Waiver of Process; Consentto Probate).

14. A Notice of Probate together with proof by affidavit of themailing of a copy of the notice to each party required tobe named in the notice. See SCPA § 1409(2).

15. Oath of Trustee. See Official Form P-1 (Petition for Pro-bate). If the probate petition also requests that Letters ofTrusteeship be issued under the Will, an Oath and Designa-tion of Trustee, executed by the nominated trustee, mustalso be filed with the petition.

16. Self-addressed stamped envelope. Depending on the county,the petitioner may need to submit a self-addressed stampedenvelope to the court in order to receive a copy of the decreeand letters testamentary. See Probate Proceeding Checklist(P-CHKLST), Surrogate’s Court Checklists, at: www.cou-rts.state.ny.us/forms.surrogates/pdfs/fouth_checklists.pdf.




17. Filing Fee. See SCPA § 2402(7). The fee is based on thevalue of the decedent’s probate assets and must be filed withthe petition.

Strategic Point: Most courts will not accept a personalcheck from the petitioner unless the petitioner is also anattorney. The attorney should bring any of the following:a firm check, money order or certified check for the filingfee and for any certificates of letters.

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts §§ 41.03, 41.11.


● New York Practice Guide: Probate and Estate Administra-tion §§ 7.02, 7.10.

● Bender’s Forms for the Civil Practice Form No. SCPA1402:1 (Official Form P-1, Petition for Probate of Will),Form No. SCPA 1402:6 (Official Form P-13, Affidavit ofComparison to Attach to Copy of Will), Form No. SCPA1402:10 (Official Form FT-1, Family Tree), Form No.SCPA 1403:4 (Official Form P-4, Waiver and Consent toProbate of Will), Form No. SCPA 1404:1 (Official FormP-3, Affidavit of Attesting Witness).

● See Probate Proceeding Checklist (P-CHKLST), Surro-gate’s Court Checklists, at www.courts.state.ny.us/forms.surrogates/pdfs/fouth_checklists.pdf.




PART C: SERVING PROCESS AND NOTICE

§ 3.06 Checklist for Serving Process and Notice

M Determine who is required by statute to be served withcitation. SCPA § 1403. See § 3.07 below.

M Prepare citation and file same with court clerk, who willfill in return date and return for service.

M Serve process in manner required by statute. SCPA § 307.See §§ 2.08–2.11 above.

M File proof of service with court.

M Mail notice of probate. See § 3.08 below.

Determine who is required to receive notice of probate.SCPA § 1409.

Prepare and mail notice of probate, and file copies ofnotice of probate and affidavit of mailing with court.

§ 3.07 Preparing and Serving Citation

[1] Determining Who Must Receive Citation

Under SCPA § 1403(1), the following parties must be servedwith a citation:

1. The distributees of the decedent (that is, those who wouldinherit in the absence of a Will pursuant to EPTL §§ 4-1.1,4-1.2 and 4-1.4);

2. The person or persons designated in the Will as the primaryexecutor or executors, unless such person is the petitioner;

Strategic Point: A nominated successor executor need notbe served with a citation unless the primary executorcannot act or fails to qualify.

3. The person or persons designated in the Will as a benefi-ciary, executor, trustee, or guardian whose rights or interestsare adversely affected by any other instrument offered forprobate that is later in date of execution;




4. Any person designated as beneficiary, executor, trustee, orguardian in any other will of the same testator filed withthe court whose rights or interests are adversely affectedby the instrument offered for probate;

5. The decedent, if the petition alleges that the decedent isbelieved to be dead;

6. The state tax commission, if the decedent was anondomiciliary;

7. The fiduciary of any deceased person to whom process isrequired to be issued, or if no fiduciary has been appointed,to all persons interested in the estate of such person;

8. The attorney general, if there are no distributees or if thepetitioner does not know whether any exist;

9. Any party adversely affected by the decedent’s exercise ofa power of appointment in the Will; and

10. The public administrator in any case where not all of thedecedent’s distributees are cited or where the distributeescited are related in the fourth degree of consanguinity ormore remotely. See SCPA §§ 1123(2)(i)(2) and 1215(b).

Strategic Point: The name of every party who mustreceive a citation must be listed in paragraph six of theprobate petition.

PRACTICE RESOURCES:


● Bender’s Forms for the Civil Practice Form No. SCPA1402:1 (Official Form P-1, Petition for Probate of Will).

[2] Including Required Contents in Citation

Although a citation is technically issued by the court, thepetitioner should prepare the citation for the court to issue and fileit with the petition. The citation must state the followinginformation:

§ 3.07[2]PROBATE PROCEEDINGS3–13



1. Name of the petitioner;

2. Name and domicile of the decedent;

3. Whether the Will is nuncupative;

4. Date of the Will and any codicils thereto;

5. Name of the party to whom a fiduciary appointment is tobe made;

6. Where and when any person objecting to the probate of theWill may file objections (the return date); and

7. Any special relief being requested.

PRACTICE RESOURCES:


● See Bender’s Forms for the Civil Practice Form No. SCPA1403:1 (Official Form P-5, Citation).


The clerk of the court will complete the citation by filling inthe date and time for a return date, which will depend on the court’sschedule and on whether the parties to be served are within theState of New York and the United States.

Citation must be served by the petitioner in accordance with therules of SCPA §§ 307 and 308 and the Uniform Rules for Surro-gate’s Court § 207.7. Service must include a copy of the Will andany codicils. See 22 NYCRR § 207.19. Proof of service byaffidavit must then be filed with the court.

s Timing: Proof of service should be filed at least twodays before the return date and should state clearly the date,time, and place of service and the name of the personserved. See Official Form P-7 (Affidavit of Service ofCitation).

Any person who is over the age of 18, competent and requiredto be served with a citation may waive such service by executing

3–14NEW YORK SURROGATE’S COURT§ 3.07[3]



a waiver and consent. Each person executing a waiver must begiven a copy of the Will and any codicils. The waiver must statethat a copy of the Will and any codicils to it were provided andmust specify the date of the Will and codicils. See SCPA § 401(4);22 NYCRR § 207.19; see also Official Form P-4 (Waiver ofProcess; Consent to Probate).

The court will appoint a guardian ad litem to represent anyperson required to be cited who is under a disability pursuant toSCPA § 403(2).

All of the rules of SCPA § 315 regarding virtual representationapply in determining who must receive citation.

t Warning: Because horizontal virtual representation isavailable only if the Will so provides, it is unavailable ina probate proceeding because, as yet, there is no valid will.

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts §§ 41.04–41.08.

● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1403.01 et seq.

● New York Practice Guide: Probate and Estate Administra-tion §§ 6.03–6.05.

● Bender’s Forms for the Civil Practice Form No. SCPA1402:1, Form No. SCPA 1403:1, Form No. SCPA 1403:4(Official Form P-4, Waiver and Consent to Probate of Will),Form No. SCPA 1407:3 (Official Form P-7, Affidavit ofService of Citation).

● See § 2.17 above (virtual representation).

§ 3.08 Sending Notice of Probate

[1] Determining Who Must Receive Notice of Probate

If not otherwise notified of the probate proceeding throughcitation (or execution of a waiver), each of the following parties




must be mailed a Notice of Probate. The notice makes the partyaware of his, her or its interest under the Will but does not conferjurisdiction over the party:

1. Person named in the petition as a legatee or devisee;

2. Beneficiary of a revocable trust;

3. Trustee named in the Will;

4. Guardian named in the Will;

5. Successor executor, trustee, or guardian named in the Will;

6. The New York attorney general, if the Will contains acharitable bequest either to an unnamed charity or of anunspecified amount, including a residuary bequest; and

7. The party upon whom personal service of process is re-quired to be made pursuant to SCPA § 307(4) and (5) withrespect to any infant or incompetent required to receivenotice of probate.

See SCPA § 1409.

Exception: Although not required by statute, many courtswill require that the New York attorney general receivenotice of probate even if the only charitable bequest is thatof a specific dollar sum to a named charity.

The name of every party who must receive notice of probatemust be listed in paragraph seven of the probate petition.

If an interest under the Will is given to a class of persons uponthe happening of a future event, it is sufficient to give Notice ofProbate to only those persons in the class who are already in beingat the time of the decedent’s death. See SCPA § 1409(1)(a) (whichparallels SCPA § 315(2)(a)(i)). If an interest under the Will islimited to a party who either has been named in the Notice ofProbate or has received or waived citation, and such interest isfurther limited, upon the happening of a future event, to a classof persons described in terms of their relationship to such party,notice of probate need not be given to the class. See SCPA§ 1409(1)(b) (which parallels SCPA § 315(2)(a)(ii)).




PRACTICE RESOURCES:


● See Bender’s Forms for the Civil Practice Form No. SCPA1402:1 (Official Form P-1, Petition for Probate of Will).

[2] Including Required Contents of Notice of Probate

The Notice of Probate must include the following information:

1. Name and domicile of the decedent;

2. Date of the Will and any codicils thereto;

3. A statement that the Will has been or will be offered forprobate;

4. Name and address of the petitioner; and

5. Name, address and nature of interest of each party requiredto receive notice.

PRACTICE RESOURCES:


● See Bender’s Forms for the Civil Practice Form No. SCPA1409:1 (Official Form P-6, Notice of Probate).

● SCPA § 1409(1).

Strategic Point: For the sake of privacy, the Notice ofProbate should recite only a general description of eachparty’s interest, such as “general legatee.” However, thepetition for probate must be more specific, for example“general legatee of $500.”

[3] Mailing Notice of Probate

A copy of the Notice of Probate must be filed with the courtalong with proof by affidavit of its mailing to each party requiredto receive notice. See SCPA § 1409(2).




Strategic Point: The Official Form of Notice of Probatestates that the Will either has been or will be offered forprobate. Thus, the practitioner is advised to mail noticesprior to filing the petition and file proof of mailing at thesame time as the probate petition is filed, thus saving theneed for a second trip to court. See Official Form P-6(Notice of Probate).

PRACTICE RESOURCES:


● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1403.01 et seq., 1409.01, 1409.02, 1409.03, 1409.04.


● Bender’s Forms for the Civil Practice Form No. SCPA1402:1, Form No. SCPA 1409:1 (Official Form P-6, Noticeof Probate).




PART D: NAVIGATING THROUGH PROBATEPROCEEDING

§ 3.09 Checklist for Navigating Through ProbateProceeding

M Determine whether court must examine attesting witnesses.SCPA § 1404. See § 3.11 below.

M Determine if Will includes a self-proving affidavit.

File self-proving affidavit to avoid examination bycourt of attesting witnesses.

Determine if there is any reason why Court might nothonor self-proving affiant.

M If there is no self-proving affidavit, then obtain and fileaffidavits of attesting witnesses. SCPA § 1406(1).

Request court to dispense with testimony of witnesswho is dead, absent from state, incompetent orforgetful.

M If original Will is lost, prove contents of Will. SCPA§ 1407. See § 3.13 below.

M Offering additional proof to probate nuncupative or holo-graphic Will. SCPA § 1404. See § 3.14 below.

M If representing potential objectant, determine if client hasstanding to object. SCPA § 1410. See § 3.18[2] below.

M Decide whether to examine certain interested parties (thatis, attesting witnesses, drafter of Will, nominated executor,and Will proponent) before or after filing objections. SCPA§ 1404. See § 3.12[1] below.

M File any objections to probate. See § 3.15[2] below.

On or before return date;

By date directed by court; or

Within 10 days after examination of witnesses.

M Provide all parties who have appeared with copy of objec-tions. See § 3.16 below.




M If representing proponent of Will, file citation within 30days after objectant files objections; serve citation. See§ 3.16 below.

M Prepare and file draft decree for court to review and issue.See § 3.17 below.

§ 3.10 Obtaining Court Examination of AttestingWitnesses

Generally, at least two of the attesting witnesses must beproduced and examined by the court. See SCPA § 1404(1).

The proponent of the Will has the burden of producing theattesting witnesses, but the estate must generally bear the expenseof producing them. See In re Westover, 145 Misc. 2d 469, 546N.Y.S.2d 937 (Sur. Ct. Fulton County 1989) (holding that theexpenses of taking the testimony of a subscribing witness bycommission are borne by the estate).

PRACTICE RESOURCES:


● Cox, Arenson & Medina, New York Civil Practice: SCPA¶ 1404.01.


§ 3.11 Excluding Attesting Witnesses fromExamination by Court

[1] Excluding Attesting Witnesses from Examination byCourt by Producing Self-Proving Affidavit

The attesting witnesses may make an affidavit attesting to thevalidity of the execution of the Will and the testator’s competencyto make a Will. Either the testator or, after his death, the nominatedexecutor, the proponent of the Will, or the attorney for theproponent of the Will may request such an affidavit from thewitnesses. The witnesses must be shown either the original willor a court-certified copy. See Official Form P-3 (Affidavit of




Attesting Witness). Such an affidavit will be sufficient to dispensewith the testimony of the witnesses before the court unless objec-tions are raised to the probate of the Will. See SCPA § 1406(1).

Strategic Point: A self-proving affidavit should be usedwhenever possible, because it obviates the necessity ofascertaining dead or locating missing witnesses after thetestator’s death. Practitioners should have the witnessesexecute the self-proving affidavit at the time the Will isexecuted.

A self-proving affidavit may not be honored by the court if:

1. The Will contains changes or mutilations or the appearanceof the Will is otherwise irregular;

2. The testator was illiterate or unable to read English;

3. More than one Will was executed and not all counterpartsare produced;

4. The Will was executed within 90 days of the decedent’sdeath;

5. The attorney-draftsman or member of his family is a benefi-ciary under the Will;

6. The testator is blind or otherwise unable to execute a Willin the usual manner;

7. The execution of the Will was not supervised by an attorney;or

8. The testator signed with a mark instead of a signature.

Strategic Point: If all distributees have consented to theprobate of the Will, many courts will allow a self-provingaffidavit even if the Will was executed within 90 days ofthe decedent’s death.




PRACTICE RESOURCES:


● Bender’s Forms for the Civil Practice Form No. SCPA1406:1 (Official Form P-3, Affidavit of Attesting).

● In re Lipin, N.Y.L.J., Mar. 29, 1982, p. 13 (Sur. Ct. NewYork County)

[2] Dispensing with Examination Where Attesting WitnessIs Dead, Absent from State or Incompetent

If at least one witness has been examined, the court may dispensewith the testimony of a second deceased or incompetent witnessor a second witness who cannot, with due diligence, be locatedwithin the state and admit the Will to probate without additionalproof. See SCPA § 1405(1).

If all of the attesting witnesses are dead, incompetent or absentfrom the state and their testimony has been dispensed with, theWill may be admitted to probate upon proof of both the testator’shandwriting and the handwriting of at least one of the witnessesand other facts necessary to prove the validity and due executionof the Will. See SCPA § 1405(4); see also Official Form P-9(Affidavit Proving Handwriting).

The court will require proof of the unavailability of a witnessby affidavit supported by a death certificate for each deceasedwitness. See Official Form P-8 (Application and Order for Dispens-ing with Testimony of Attesting Witness).

If a witness is absent from the state but the witness’ testimonycan be obtained by reasonable diligence, a party may demand thatthe witness’ testimony be taken by commission. See SCPA§ 1405(2).

PRACTICE RESOURCES:


● Bender’s Forms for the Civil Practice Form No. SCPA106:43 (Official Form P-8, Application to Dispense with




Testimony of Attesting Witness), Form No. SCPA 106:44(Official Form P-9, Affidavit Proving Handwriting).

[3] Ignoring Testimony of Hostile or Forgetful AttestingWitness

If an attesting witness has forgotten the execution of the Willor testifies against due execution and at least one other witnesshas been examined, the court may admit the Will to probate uponthe testimony of just the one other witness and other facts sufficientto prove the validity and due execution of the Will. See SCPA§ 1405(3). If both witnesses cannot remember the execution ortestify against the Will, the court can admit the Will to probateprovided there is sufficient other proof that the Will is valid. SeeIn re Collins, 60 N.Y.2d 466, 470 N.Y.S.2d 338, 458 N.E.2d 797(1983) (holding that a Will may be admitted to probate despite theinability of attesting witnesses to clearly recall circumstancessurrounding its execution).

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts §§ 41.09, 41.10,112.02, 115.07.

● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1404.01, 1404.02, 1405.01, 1405.02, 1405.03, 1405.04,1406.01, 1406.02, 1406.03, 1406.04, 1406.05.


● Bender’s Forms for the Civil Practice Form No. SCPA1404:1, Form No. SCPA 1405:1, Form No. SCPA 1405:5,Form No. SCPA 1406:2.

§ 3.12 Examining Interested Parties

[1] Determining Who May Be Examined

Any party to the proceeding may examine:

1. Any or all of the attesting witnesses, either before or afterthe filing of objections;




2. The person who prepared the Will either before or after thefiling of objections; and

3. The nominated executors and the proponents of the Willeither before the filing of objections if the Will containsan in terrorem clause or after the filing of objections,whether or not the Will contains an in terrorem clause.

See SCPA § 1404(4).

If more than one person was involved in the drafting, the personwho met with the testator and took drafting instructions is consid-ered to be the person who prepared the Will. See SCPA § 1404(6).

Nonparty witnesses, such as medical professionals who attendedto the decedent, may also be examined pursuant to CPLR 3101(a)after objections have been filed.

[2] Determining Who Is Entitled to Examine Witnesses

Although SCPA § 1404(4) allows any party to the proceedingto examine a witness, generally the courts will limit the right toexamine witnesses to those parties who are entitled to file objec-tions under SCPA § 1410. See In re Peckolick, 167 Misc. 2d 597,639 N.Y.S.2d 675 (Sur. Ct. New York County 1996) (refusing toallow executor named in a prior will to examine witnesses becausesuch party had no basis for filing objections).

[3] Determining When Witnesses May Be Reexamined

No person who has been examined under SCPA § 1404 maybe examined again in the same proceeding under any other provi-sion of law except by direction of the court. See SCPA § 1404(4).In deciding whether to permit a second examination of a witness,the court will look at the following factors:

1. The inconvenience of the exam;

2. The location of the witness;

3. The amount of time since the previous exam; and

4. The prejudice to the objectants that would result fromdenial.

See In re Cesario, N.Y.L.J., Oct. 19, 1993, p. 32 (Sur. Ct.Westchester County) (enumerating factors considered by court in




determining whether to allow second examination of witnesses);In re Seskin, N.Y.L.J., Dec. 23, 1987, p. 14 (Sur. Ct. NassauCounty) (allowing second examination of witnesses after consider-ing convenience, time, location and prejudice).

[4] Keeping Examinations Within Limited Scope

The scope of examinations under SCPA § 1404 is limited tothose issues that are relevant to the validity and due execution ofthe Will. See SCPA § 1404(4). Issues regarding construction arenot proper subjects for a SCPA § 1404 examination.

Absent the showing of special circumstances, the subject matterof examinations in a contested probate proceeding is limited tocircumstances occurring within the three years prior to the date ofexecution of the Will and two years after. See 22 NYCRR§ 207.27.

Prior to the filing of objections, all rights with respect todocument discovery and, after objections are filed, all discoveryrights granted under CPLR Article 31, are afforded the partyconducting the examination. See SCPA § 1404(4); 22 NYCRR§ 207.27; see also CPLR Article 31.

PRACTICE RESOURCES:


● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1404.01 et seq., 1408.01, 1408.02, 1408.03.

● Weinstein, Korn & Miller, New York Civil Practice: CPLRCh. 3101.


● LexisNexis AnswerGuide New York Civil Litigation § 6.01et seq. (discovery).

[5] Determining Time and Place of Examinations

All examinations conducted pursuant to SCPA § 1404:

1. Must be conducted on reasonable notice to all attorneys,guardians ad litem, and parties entitled to notice underSCPA § 302(3);




2. Cannot be conducted until jurisdiction has been obtainedover all necessary parties to the proceeding; and

3. Must be held at the courthouse, unless otherwise directedby the court.

See 22 NYCRR § 207.28.

In an uncontested probate proceeding, if a witness is outside thejurisdiction of the court and cannot conveniently come to the court,the court may direct that the witness be examined in the Surrogate’sCourt of another county, in an appropriate court of another stateor county, or before a commissioner designated by the court. SeeSCPA § 507(2); 22 NYCRR § 207.22(a).

[6] Recording Testimony

In all cases, proof must be reduced to writing and the testimonyof the witnesses recorded either by the probate clerk or, if a partyother than the court is conducting the examinations, by a stenogra-pher. See SCPA § 1404(4).

[7] Determining Responsibility for Examination Costs

If examinations are conducted before objections are filed, thecosts of the initial examination of the first two attesting witnesseswithin the state or the examination of the one witness outside thestate who resides closest to the county in which the proceedingsare pending are to be paid by the decedent’s estate. The same istrue of the costs of the stenographer, one copy of the transcriptsfor the court and any guardian ad litem. All other costs, includingcosts of examinations conducted after objections are filed and costsof document discovery, are governed by CPLR Article 31. SeeSCPA § 1404(5).

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts §§ 112.02, 115.06,115.07.

● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1404.01, 1404.11.

● Weinstein, Korn & Miller, New York Civil Practice: CPLR¶ 3101.01.





● LexisNexis AnswerGuide New York Civil Litigation § 6.01et seq. (discovery).

§ 3.13 Proving Lost or Destroyed Will

In order to admit a lost will to probate the proponent must provethe following:

1. The Will was not revoked;

2. The Will was duly executed; and

3. The contents of the Will by providing a copy of the executedWill, a draft of the Will, or testimony of at least two crediblewitnesses regarding the contents.

See SCPA § 1407.

A witness’ testimony as to the provisions of the Will must bebased upon the witness’ own reading of the Will and cannot bebased upon statements made by the decedent to the witnessregarding the contents of the Will. A decedent’s declaration as tothe contents of the Will are inadmissible in New York. See In reYanover, 16 Misc. 2d 128, 182 N.Y.S.2d 961 (Sur. Ct. NassauCounty 1959) (refusing to admit lost Will based on decedent’sdeclarations of contents).

Strategic Point: Retention of the original Will by theattorney-draftsman will usually overcome the presumptionthat a lost Will was revoked by the testator.

PRACTICE RESOURCES:







§ 3.14 Proving Nuncupative or Holographic Will

In addition to the usual proof required that the testator wascompetent to make a Will and under no restraint, the followingadditional proofs must be offered in order to probate a nuncupativeWill or a holographic Will:

1. Proof of the eligibility of the testator to make a nuncupativeor holographic Will and the non-expiration of such Will.EPTL § 3-2.2 requires that the testator be either a memberof the armed forces, accompanying an armed force duringa time of armed conflict or a mariner at sea. See SCPA§ 1404(3).

2. If the Will is nuncupative, proof by at least two witnessesof both the execution and provisions of the Will. See SCPA§ 1404(3).

3. If the Will is holographic, proof that the decedent wrote theWill with testamentary intent and proof of the testator’shandwriting. See SCPA § 1404(3).

PRACTICE RESOURCES:




● Bender’s Forms for the Civil Practice Form No. SCPA1405:5 (affidavit as to handwriting).

● 5th Rep., Temp Comm’n on Estates, Leg. Doc. (1966) No.19, App. L-8, pp. 371–97.

§ 3.15 Filing Objections

[1] Determining Who May File Objections

In order to have standing to file objections to the probate of aWill or of any part thereof:




1. A party must have a pecuniary interest in the real or personalproperty of the decedent;

2. Such interest must be one that would be adversely affectedby the admission of the Will to probate; and

3. Unless good cause is shown, such interest cannot be afinancial interest solely in fiduciary commissions.

See SCPA § 1410.

Exception: Even if a legatee has no standing to object toa Will due to a lack of pecuniary interest, he or she cannevertheless object to the qualification of the nominatedfiduciary. See In re Judson, N.Y.L.J., Nov. 1, 1995, p. 32(Sur. Ct. New York County) (allowing parties to objectto qualification of preliminary executor despite lack ofstanding to file objections to probate).

An in terrorem clause cannot deprive a person of standing tocontest the probate of a Will. See In re Lippner, 104 Misc. 2d 819,429 N.Y.S.2d 839 (Sur. Ct. Kings County 1980) (neither a “nocontest” nor a “forfeiture” clause may under any circumstancesdeny to a distributee “standing” to contest probate of the Will underSCPA § 1410). However, if unsuccessful, the contestant mayforfeit his or her interest in the estate.

[2] Considering Form and Timing of Objections

Objections to the probate of a Will must be in writing and filedon or before the return date or on a subsequent day as directedby the court.

If a request is made to examine the witnesses pursuant to SCPA§ 1404, objections must be filed within 10 days after the comple-tion of such examination or such later date as may be agreed toby the parties or fixed by the court. See SCPA § 1410 and 22NYCRR § 207.26.

Unless the court makes a special order, late objections may beaccepted only if accompanied by a stipulation of all parties to




extend the time to file objections. See 22 NYCRR § 207.36. Insuch a case, the court will examine the following factors:

1. The reason for the delay;

2. The extent of the delay;

3. The deliberateness of the default;

4. The prejudice that might result from the delay; and

5. The merits of the objection.

See Anolick v. Travelers Ins. County, 63 A.D.2d 665, 404 N.Y.S.2d689 (2d Dep’t 1978) (vacating default after reviewing all relevantfactors); In re Harrison, N.Y.L.J., May 20, 2002, p. 22 (Sur. Ct.Bronx County) (allowing objections to be filed).

[3] Including Proper Allegations Within Objections

Proper objections to the probate of a Will include objectionsregarding the genuineness, validity, and due execution of the Will.Any questions regarding the meaning of the Will or seeking acorrection of the Will cannot be determined until after the Willis admitted to probate. See In re Devine, 41 Misc. 2d 211, 244N.Y.S.2d 934 (Sur. Ct. New York County 1963) (holding that themeaning of a Will and its interpretation and correction must waituntil after Will is admitted to probate). Common objections includeallegations of improper execution, fraud, duress, undue influence,lack of testamentary capacity, forgery and revocation.

The following allegations are improper in a proceeding toprobate a Will because they do not concern the genuineness,validity and due execution of the Will:

1. That a divorce obtained by the decedent was invalid (seeIn re Dennis, 206 Misc. 593, 133 N.Y.S.2d 455 (Sur. Ct.Suffolk County 1954));

2. That the Will does not dispose of the decedent’s propertyin a manner consistent with a valid and binding agreemententered into by the decedent (see In re Mirsky, 81 Misc.2d 9, 365 N.Y.S.2d 122 (Sur. Ct. New York County 1975));

3. That the Will would be invalid if construed in a certain way(see In re Devine, 41 Misc. 2d 211, 244 N.Y.S.2d 934 (Sur.Ct. New York County 1963)); and




4. That legacies are prohibited by statute (see In re Felter, 32Misc. 2d 985, 224 N.Y.S.2d 966 (Sur. Ct. Kings County1962)).

Objections should:

1. Include a verified allegation of how the objectant’s interestis adversely affected; and

2. Describe the allegations in sufficient detail to give the courtand other parties notice of the objections asserted.

See SCPA §§ 103(39) and 302(2).

Strategic Point: Objections need not specifically deny theallegations of the probate petition. Rather, the objectionsmay affirmatively allege why probate should be denied,such as to lack of capacity, undue influence, or improperexecution of the Will. See In re Dixon, 7 Misc. 2d 812,160 N.Y.S.2d 177 (Sur. Ct. Westchester County), aff’d,2 A.D.2d 987, 158 N.Y.S.2d 770 (2d Dep’t 1956).

PRACTICE RESOURCES:




§ 3.16 Giving Notice and Serving Citation UponFiling of Objections

[1] Determining Who Must Receive Notice of Objectionsand Citation

Whenever objections are filed, the party filing objections shouldfurnish a copy of the objections to each party who appeared in thematter.

Within 30 days after the filing of objections, the proponent ofthe Will must submit a citation to the court which must be served




upon each party named in the Will whose interests would beaffected by the outcome of the proceeding and who has notappeared in the proceeding or waived service of citation. If theproponent fails to submit the citation to the court, it may besubmitted by any other interested party. See SCPA § 1411(2) and(3) and 22 NYCRR § 207.26.

Any person who has waived service of citation or has beenserved may appear personally on the return date or by filing a noticeof appearance. Any party failing to appear will not be entitled tofurther notice and any determinations or settlements will be bindingon all persons who have failed to appear. See SCPA § 1411(5)and (6).

[2] Including Required Contents in Citation

The citation must recite:

1. That objections have been filed;

2. That such objections may be determined at a trial, hearingor conference on a specified return date; and

3. The consequences of failing to appear.

See SCPA § 1411(1).


The citation must be served in accordance with the rules of SCPA§§ 307 and 308 except that service may be made by mail uponany person whether a resident or nonresident of New York. SeeSCPA § 1411(4).

Proof of service by affidavit must be filed with the court at leasttwo days before the return date. See SCPA § 1411(4).

PRACTICE RESOURCES:



● Weinstein, Korn & Miller, New York Civil Practice: CPLRCh. 3101.





● LexisNexis AnswerGuide New York Civil Litigation §§ 6.01et seq. (discovery), 8.01 et seq.

● 22 NYCRR §§ 207.23, 207.27, 207.28, and CPLR Article31 (regarding pretrial procedures including pretrial confer-ences, examination of witnesses, discovery, document pro-duction, bill of particulars, interrogatories, and lettersrogatory).

§ 3.17 Obtaining Decree

[1] Meeting Prerequisites for Issuance of Decree

Before a Will may be admitted to probate, the court must firstbe satisfied with the genuineness and validity of the Will. SeeSCPA § 1408(1). Even if all parties consent to probate, the courtmust make its own evaluation regarding the validity of the Will.See In re Wharton, 114 Misc. 2d 1017, 453 N.Y.S.2d 308 (Sur.Ct. Westchester County 1982) (duty of Surrogate to be satisfiedthat instrument offered for probate was duly executed).

The court must issue a decree admitting the Will to probate whenit is satisfied that:

1. The Will is genuine;

2. The Will was validly executed pursuant to the provisionsof EPTL § 3-2.1 (in the case of a holographic Will, EPTL§ 3-2.2);

3. The testator had the requisite capacity to make a Will atthe time of its execution; and

4. The testator was not under any undue restraint.

See SCPA § 1408(2).

Partial probate of a Will is permissible. See In re Atlas, 101 Misc.2d 677, 421 N.Y.S.2d 815 (Sur. Ct. Nassau County 1979).

[2] Including Required Contents in Decree

In the normal case where there is no probate contest, the decreeshould include the following:




1. A statement that the Will has been filed with a petition forits probate;

2. A statement confirming that jurisdiction has been obtainedover all interested parties by citation, appearance, or waiver;

3. A statement that a guardian ad litem has been appointed,if appropriate, and has filed his or her report withoutobjection;

4. A statement that the Surrogate is satisfied that the Will isgenuine and was duly executed and that the testator wascompetent to make a Will and not under any restraint;

5. A direction for the issuance of letters testamentary to theexecutors named in the Will upon their qualification and,if relevant, letters of trusteeship; and

6. A revocation of any prior letters of administration, prelimi-nary letters testamentary, or letters of administration.

SCPA § 1413.

If there was a Will contest, the decree should also include recitalsof the filing of objections, the trial and the verdict or decision, or,if there was a settlement, the terms of the settlement. The decreemay also include provisions for the payment of costs.

The court may strike from the Will non-dispositive and libelousor objectionable language. In such a case, the Will is preservedintact and under seal and the amended text is set forth in the decree.See In re Croker, 201 Misc. 264, 105 N.Y.S.2d 190 (Sur. Ct.Suffolk County 1951).

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts §§ 42.05, 42.06,42.07, 43.01, 43.02, 43.03, 43.04 (due execution of a Will,the level of capacity required to execute a Will, fraud andundue influence).

● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1402.06, 1408.01, 1408.02, 1408.03, 1408.04, 1408.05,1413.01, 1413.02, 1422.01, 1423.01, 1424.01, 1424.02.





● See Bender’s Forms for the Civil Practice Form No. SCPA1411:5–Form No. SCPA 1411:23 (various forms of decree).

● 5th Rep., Temp. Comm’n on Estates, Leg. Doc. (1966) No.19, App. M-4, pp.546–59.




PART E: OBTAINING LETTERSTESTAMENTARY

§ 3.18 Checklist for Obtaining Letters Testamentary

M Confirm that nominated executor is eligible to receive letterstestamentary. SCPA § 707. See § 3.19[1] below.

M File renunciation if nominated executor does not wish toserve. SCPA § 1417. See § 3.19[3] below.

M Consider petitioning for preliminary letters if delay inprobate is expected. SCPA § 1412. See § 3.20 below.

Prepare and file separate petition for preliminary lettersat or after filing probate petition.

Mail notice of petition for preliminary letters to allpersons with right to letters testamentary.

Mail notice of appointment of preliminary executor toall parties who have appeared.

M Obtain court approval before distributing estate assets tobeneficiaries in advance of Will being admitted to probate.See § 3.20[5] below.

M Petition for letters of administration c.t.a. when no nomi-nated executor is willing or able to serve. SCPA § 1418.See § 3.21 below.

§ 3.19 Obtaining Letters Testamentary

[1] Determining When and to Whom LettersTestamentary May Issue

Letters may issue upon the happening of the following events:

1. Upon admission of a Will to probate; see SCPA § 1414(1);

2. Upon the rendering of a judgment in a Supreme Courtproceeding to establish a Will and in accordance with suchjudgment; see SCPA § 1414(2);

3. If the person is entitled to letters upon a contingency, whenthe person has appeared and shown that the contingencyhas happened; see SCPA § 1414(3); or




4. If such person is named as an executor by someone otherthan the testator pursuant to a power to appoint grantedunder the Will, when such person appears and files anacknowledged instrument designating him or her as execu-tor see SCPA § 1414(4).

Letters testamentary may issue to any person who:

1. Is entitled to receive letters under the Will;

2. Is eligible to serve as a fiduciary under the provisions ofSCPA §§ 707 and 711; and

3. Qualifies pursuant to SCPA § 708.

See SCPA § 1414(1). The court does not have the authority to denyletters to a person nominated under a Will who is otherwise eligibleand who qualifies. See In re Scheu, 29 A.D.2d 626, 285 N.Y.S.2d380 (4th Dep’t 1967).

Strategic Point: If someone other than the nominatedexecutor petitions for probate of the Will, the personentitled to letters testamentary must appear in the proceed-ing. This may be done by filing a petition for receipt ofletters or signing a waiver and consent form, and providingother papers required for qualification such as an oath anddesignation, bond, and waiver of commissions, if applica-ble. See SCPA § 1414(1).

PRACTICE RESOURCES:




● See Ch. 1 above and N.Y. Const. Art. 6, § 12(f) (concurrentjurisdiction of Supreme Court).




[2] Obtaining Supplemental Letters

If, at the time a Will was admitted to probate, the nominatedexecutor was a minor or a non-domiciliary alien, and thereforeineligible to act as executor, but such person subsequently reachesthe age of majority or becomes a citizen of the United States,supplemental letters may issue to him or her upon the filing of apetition reciting the change in circumstances. See SCPA § 1415.There is no remedy upon subsequent cure for persons who areineligible to act as executor for reasons other than age orcitizenship.

The nominated executor must be eligible to act as an executorunder SCPA §§ 707 and 711 and must qualify pursuant to SCPA§ 708.

PRACTICE RESOURCES:



[3] Renouncing or Failing to Qualify As Executor

A nominated executor may renounce his or her right to letterstestamentary by an acknowledged instrument filed in the courthaving jurisdiction over the estate or by an oral renunciation madein open court and accepted by the Surrogate. See SCPA § 1417(1)and (4); Official Form P-10 (Renunciation of Nominated Executorand/or Trustee). The effectiveness of a renunciation may not beconditioned on subsequent events, such as the issuance of lettersto another named fiduciary.

Where someone other than the nominated executor petitions forprobate of the Will and such will is admitted to probate, but thenominated executor fails to appear or qualify, any party interestedin the decedent’s estate may make an ex parte application to thecourt for an order directing that the nominated executor be deemedto have renounced his or her appointment as executor if thenominated executor fails to qualify:

1. Within 15 days after the Will is admitted to probate;




2. Within 15 days after the filing of the instrument designatinghim or her as executor pursuant to a power in the Will; or

3. Within 5 days after objections to the grant of letters havebeen determined in his or her favor.

See SCPA § 1416(1) and (3). Such an order must be servedpersonally within the state upon the nominated executor or usingsuch alternative method of service as the court may prescribe. SeeSCPA § 1416(2).

A renunciation effected by either affirmative action of thenominated executor or by the nominated executor’s failure tocomply with an order issued pursuant to SCPA § 1416 may beretracted by an acknowledged and filed instrument so long as lettershave not been issued to any other party, subject to the discretionof the court. See SCPA §§ 1416(3) and 1417(2) and (4); see alsoIn re Kellogg, 214 N.Y. 460, 108 N.E. 844 (1915).

PRACTICE RESOURCES:


● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1416.01, 1416.02, 1416.03, 1417.01, 1417.02, 1417.03.


● Bender’s Forms for the Civil Practice Form No. SCPA1417:1 (Official Form P-10, Renunciation of ExecutorNamed in Will and Waiver of Citation).

§ 3.20 Obtaining Preliminary Letters Testamentary

[1] Determining If Preliminary Letters Testamentary MayIssue

Preliminary letters may issue, among other times, if a delay inprobate is expected and there is a need to attend promptly to thedecedent’s assets. A delay in probate may be caused, for example,by a Will contest or if the decedent’s distributees are unknown.

A petition for preliminary letters testamentary may be made:




1. After the filing of a petition for probate and the issuanceof process; or

2. In the discretion of the court, before the issuance of processin the probate proceeding if circumstances warrant.

See SCPA § 1412(1).

Strategic Point: The probate petition need not be completeif information remains unknown. The petitioner may sub-mit a petition for preliminary letters and proposed orderfor preliminary letters at the time a petition for probate issubmitted.

Once process has issued and a preliminary executor has quali-fied, the court must issue preliminary letters. See SCPA § 1412(5).The court is given wide discretion, however, to limit the powersof the preliminary executor, to require the filing of a bond, andto revoke preliminary letters. See SCPA § 1412(3), (4) and (5).Nevertheless, in extraordinary circumstances, the court may denya request for preliminary letters, such as where a bona fide issueof undue influence, fraud, or other wrongdoing is raised. See Inre Weiss, N.Y.L.J., Dec. 19, 1997, p. 32 (Sur. Ct. Bronx County).

Preliminary letters are not available for an executor nominatedin a lost or destroyed will. See SCPA § 1412(1). Similarly,preliminary letters are not available if there is no nominatedexecutor or where the Will is nuncupative. In such cases, aninterested party may apply for letters of temporary administrationpursuant to SCPA § 901.

PRACTICE RESOURCES:




● 2d Rep. of the EPTL-SCPA Legislative Advisory Commit-tee, Leg. Doc. (1993), No. 2, pp. 31–32.




● 2d Rep., Temp. Comm’n on Estates, Leg. Doc. (1963) No.19, App. B, pp. 152–53.

[2] Determining Who May Petition for PreliminaryLetters Testamentary

Only an executor named in the Will offered for probate canpetition the court for preliminary letters testamentary. See SCPA§ 1412(1). Any person with an equal right to letters (such as anominated co-executor) may join in the petition or, after prelimi-nary letters have issued, may request that the letters be extendedto him or her. See SCPA § 1412(2)(a).

A person nominated in a later Will may, after he has filed apetition for probate of such later Will and process has issuedthereon, file a cross-request for preliminary letters testamentary orif preliminary letters have already issued, request the revocationof the prior letters and the issuance of preliminary letters to himor her instead. Priority will generally be given to the person namedin the later Will though the court has the discretion to determineotherwise. See SCPA § 1412(2); see also, In re Mann, N.Y.L.J.,Apr. 10, 1978, at 12 (Sur. Ct. New York County). In practice, courtsare often reluctant to revoke preliminary letters in favor of anexecutor named in a subsequently filed later Will.

PRACTICE RESOURCES:




[3] Preparing Petition for Preliminary Letters

A petition for preliminary letters testamentary should be madeusing Official Form P-2 (Application for Preliminary LettersTestamentary) and must include the following information:

1. Name of proposed preliminary executor;




2. Name of person or persons with right to receive letterstestamentary;

3. Reason for request of preliminary letters;

4. Expected date of completion of probate;

5. Whether a probate contest is expected;

6. Description and estimated value of decedent’s probate assetsand liabilities;

7. Whether the applicant is required to file a bond pursuantto the provisions of the Will; and

8. Oath and designation of an individual preliminary executoror consent and designation of a corporate preliminaryexecutor.

Official Form P-2 (Application for Preliminary LettersTestamentary).

PRACTICE RESOURCES:

● New York Practice Guide: Probate and Estate Administra-tion § 9.06 (Official Form P-2, Application for PreliminaryLetters Testamentary).

● See Bender’s Forms for the Civil Practice Form No. SCPA1412:1 (Official Form P-2, Application for PreliminaryLetters Testamentary).

[4] Meeting Other Requirements for ObtainingPreliminary Letters

Notice of a petition for preliminary letters is required to be given,either before or after the issuance of preliminary letters, to allparties who have a right to letters testamentary, including anominated co-executor and an executor nominated under a laterWill filed with the court. See SCPA § 1412(1). Notice of a petitionfor preliminary letters need not be given to any other interestedparty. See In re Patton, 43 Misc. 2d 807, 252 N.Y.S.2d 510 (Sur.Ct. Kings County 1964).

Strategic Point: If the request for preliminary letters




testamentary is made contemporaneously with the probatepetition, notice and citation as to the probate proceedingmust still be made to those parties required to receivenotice or citation pursuant to SCPA §§ 1403 and 1409.

Notice of the actual appointment of a preliminary executor mustbe given to all parties who have appeared in the proceeding within10 days of appointment. See SCPA § 1412(3)(b).

As with any fiduciary, before preliminary letters may issue toa named executor, he or she must qualify pursuant to the provisionsof SCPA §§ 707, 708, and 711. See SCPA § 1412(5).

The court has discretion to grant preliminary letters with orwithout bond. If the Will requires that the nominated executor filea bond, the preliminary executor must file a bond in such amountas the Will requires or in such additional amount as directed bythe court. If the Will is silent or specifically dispenses with a bond,the court nevertheless has discretion to direct that a bond be postedin an amount it deems advisable. See SCPA § 1412(5).

PRACTICE RESOURCES:




● Bender’s Forms for the Civil Practice Form No. SCPA1412:1.

[5] Understanding Powers and Duties of PreliminaryExecutor

A preliminary executor is given all of the powers and authoritygranted by EPTL § 11-1.1 to a fiduciary and is subject to all ofthe duties and liability of an administrator. See SCPA § 1412(3)(a).Preliminary letters testamentary give the nominated executor the




power to do those urgent tasks necessary to protect the assets ofthe estate including:

1. Marshaling and liquidating assets,

2. Disposing of securities,

3. Paying funeral and other expenses, and

4. Filing tax returns.

A preliminary executor is specifically prohibited from payingor satisfying a legacy or distributive share but may allow a deviseeor legatee to take possession of specifically devised property. SeeSCPA § 1412(3). If circumstances warrant, the preliminary execu-tor may petition the court to distribute certain assets. See In reRobinson, N.Y.L.J., Feb. 6, 1997, p. 33 (Sur. Ct. Suffolk County)(allowing preliminary executor to make small distribution tosurviving spouse based on dire needs of spouse, size of the estateand amount that would pass to spouse whether or not Will wasprobated).

The preliminary executor’s powers may be limited either by theprovisions of the decedent’s Will or by the court through the orderdirecting the issuance of preliminary letters. See SCPA § 1412(3)and (4).

PRACTICE RESOURCES:


● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1412.05.


● 2d Rep., Temp. Comm’n on Estates, Leg. Doc. (1963) No.19, App. B, pp. 152–53.

[6] Revoking Preliminary Letters Testamentary

A decree denying or admitting probate must revoke any prelimi-nary letters testamentary. However, the court may direct that letterscontinue until the termination of any appeal. See SCPA §§ 1412(6)and 1413.




The court may revoke preliminary letters at any time prior toa final determination in a probate proceeding, in the followinginstances:

1. The preliminary executor is unreasonably delaying theprobate proceeding;

2. For any cause that would justify the revocation of permanentletters testamentary under SCPA § 719; or

3. For the best interest of the estate.

See SCPA § 1412(6). Preliminary letters have been revoked, forinstance, for the improper payment of excessive legal fees to apreliminary co-executor (see In re Lippner, 135 Misc. 2d 34, 514N.Y.S.2d 182 (Sur. Ct. Kings County 1987) (preliminary lettersrevoked when court was advised of improper payment of excessivelegal fees)), and improper payment of a legacy or distributive share.In re Gavin, N.Y.L.J., Dec. 18, 1997, p. 33 (Sur. Ct. Bronx County)(preliminary letters revoked due to improper distribution of estateby preliminary executor).

Strategic Point: If someone other than the preliminaryexecutor is appointed as the permanent fiduciary, he or sheshould request an accounting of the preliminary executor.

PRACTICE RESOURCES:




[7] Obtaining Commissions for Preliminary Executor

A preliminary executor will be entitled to statutory commissionsas provided in SCPA § 2307(5)(b) if the Will is admitted to probateand letters testamentary are issued to the preliminary executor. SeeSCPA § 1412(7). If the Will is denied probate or preliminary




letters are revoked for any other reason, the preliminary executorwill only be entitled to such compensation as the court deemsreasonable and in no event shall such compensation exceed astatutory commission. See SCPA § 1412(7).

PRACTICE RESOURCES:




● See Ch. 20 below (statutory commissions).

§ 3.21 Obtaining Letters of Administration, c.t.a.

[1] Determining If Letters of Administration c.t.a. AreAppropriate

If at any time there is no person named or designated as executorpursuant to the provisions of the Will who is eligible and willingto act as executor, any person who is entitled to petition for theprobate of the Will pursuant to SCPA § 1402 may petition the courtfor letters of administration c.t.a. (cum testamento annexo, or “withthe Will annexed”). See SCPA § 1418(1).

[2] Determining Who May Receive Letters ofAdministration, c.t.a.

Letters of administration, c.t.a. are issued in the following orderof priority, which the court has no discretion to alter:

1. To a sole beneficiary, to the fiduciary of a deceased solebeneficiary, the guardian of a minor sole beneficiary, or theguardian, committee, or conservator of an incompetent solebeneficiary; see SCPA § 1418(1), (4) and (5);

2. To one or more residuary beneficiaries, the fiduciary of adeceased residuary beneficiary, the guardian of a minorresiduary beneficiary, or the guardian, committee, or conser-vator of an incompetent residuary beneficiary, see SCPA§ 1418(1), (4) and (5);




3. To one or more persons interested in the estate, the fiduciaryof any deceased person who had an interest in the estate,the guardian of any minor person with an interest in theestate, or the guardian, committee, or conservator of anyincompetent person with an interest in the estate; see SCPA§ 1418(1) and (5);

4. Upon the acknowledged and filed consent of all beneficia-ries who are themselves eligible to receive letters of admin-istration with the Will annexed, to an eligible person, trustcompany, or other corporation; see SCPA § 1418(6) and(7);

5. To the public administrator or, if there is none for thecounty, to the treasurer of the county; see SCPA § 1418(2);

6. To the petitioner (if not otherwise eligible with a higherpriority); see SCPA § 1418(3); and

7. To any other person designated by the court; see SCPA§ 1418(3).

The nominee must be eligible to serve as a fiduciary under SCPA§§ 707 and 711 and must qualify pursuant to SCPA § 708.

A party may renounce the right to act as administrator, c.t.a. byfiling Official Form P-11 (Renunciation of Letters of Administra-tion c.t.a. and Waiver of Process—Before Probate) or Official FormCTA-3 (Renunciation of Letters of Administration c.t.a., Waiverof Process and Consent to Dispense with Bond—After Probate).

PRACTICE RESOURCES:



● New York Practice Guide: Probate and Estate Administra-tion §§ 13.01–13.05.

● Bender’s Forms for the Civil Practice Form No. SCPA1418:3 (Official Form P-11, Renunciation of Letters ofAdministration c.t.a. Before Probate), Form No. SCPA1418:4 (Official Form CTA-3, Renunciation of Letters ofAdministration c.t.a. After Probate).




● See Ch. 14 below.

[3] Preparing Petition

Application for letters of administration, c.t.a. may be made aspart of the petition for probate or after the Will is admitted toprobate by independent petition.

If the application is made prior to probate, it should be madewithin the petition for probate using Official Form P-1 (Petitionfor Probate). The application is made by checking the box at thebeginning of the form requesting that letters of administration, c.t.a.be issued and by including a statement that the petitioner (or otherparty to whom letters are requested to be issued) has a prior oran equal right to letters. See Official Form P-1 (Petition forProbate). A list of any persons with an equal or a prior right toletters should be included along with a statement that such personshave been cited, waived citation, appeared, or renounced their rightto act. See SCPA § 1419.

If the petition for letters of administration, c.t.a. is made afterthe Will has been admitted to probate, Official Form CTA-1(Petition for Letters of Administration c.t.a. After Probate) shouldbe used and should include the following information:

1. The name, citizenship, domicile, and interest of thepetitioner;

2. When the Will was admitted to probate and by what court;

3. To whom letters testamentary were issued and whether suchperson died, resigned, or was removed;

4. The names and addresses of all parties having a right toletters of administration, c.t.a.;

5. The names and addresses of all beneficiaries named in theWill;

6. A showing of the need for the appointment of an administra-tor, c.t.a.; and

7. A request for dispensing with the need for a bond, ifappropriate.




PRACTICE RESOURCES:


● See Bender’s Forms for the Civil Practice Form No. SCPA1402:1 (Official Form P-1, Petition for Probate of Will),Form No. SCPA 1418:1 (Official Form CTA-1, Petition forLetters of Administration c.t.a. After Probate).


The petitioner must serve every person who has an equal orhigher priority right to letters of administration with the Willannexed and who has not renounced such right. The court hasdiscretion to dispense with service on persons who are not NewYork domiciliaries. See SCPA § 1419; Official Forms CTA-2(Citation); CTA-3 (Renunciation of Letters of Administration c.t.a.;Waiver of Process and Consent to Dispense With Bond—AfterProbate); P-11 (Renunciation of Letters of Administration c.t.a. andWaiver of Process—Before Probate).

PRACTICE RESOURCES:


● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1418.01, 1418.02, 1418.03, 1419.01, 1419.02, 1419.03,1419.04.


● Bender’s Forms for the Civil Practice Form No. SCPA1402:1, Form No. SCPA 1418:1, Form No. SCPA 1418:2,Form No. SCPA 1418:3 (Official Form P-11, Renunciationof Letters of Administration c.t.a. Before Probate), FormNo. SCPA 1418:4 (Official Form CTA-3, Renunciation ofLetters of Administration c.t.a. After Probate), Form No.SCPA 106:79 (Official Form CTA-2, Citation).

● Administration c.t.a. (after probate) Proceeding Checklist(A-CHKLST), Surrogate’s Court Checklists, at www.cou-rts.state.ny.us/forms.surrogates/pdfs/fouth_checklists.pdf.




[5] Determining If Court May Refuse to Issue Letters ofAdministration, c.t.a.

A party may not petition for letters of administration, c.t.a.without first petitioning the court for removal of any existingfiduciary. See In re O’Hare, 7 Misc. 2d 459, 164 N.Y.S.2d 287(Sur. Ct. New York County 1957).

The court may refuse to issue letters of administration, c.t.a. ifthe distribution of the estate is possible pursuant to the provisionsof the SCPA, such as through the utilization of small estateadministration (SCPA Article 13), or where the administration ofthe estate is nearing an end and the fiduciary of a deceased executorcan be granted sufficient power to close out the estate (SCPA§ 2207(7)). See SCPA § 1418(8).

PRACTICE RESOURCES:







PART F: INTERPRETING WILL PROVISIONSTHROUGH CONSTRUCTION PROCEEDINGS

§ 3.22 Checklist for Interpreting Will ProvisionsThrough Construction Proceeding

M Consider requesting construction of Will that containsambiguity which necessitates clarification. SCPA § 1420.See § 3.24 below.

M Initiate construction proceeding by filing petition and givingnotice in the following situations: See § 3.25 below.

At any time after will admitted to probate, on behalfof fiduciaries named in Will or interested person;

Within proceeding to judicially settle an account; or

Within probate proceeding.

§ 3.23 Obtaining Jurisdiction of Surrogate’s Court toConstrue Will

A construction proceeding is a proceeding involving the con-struction, validity, or effect of any provision of a Will. See SCPA§ 1420. It may involve an interpretation of ambiguous or confusingterms used by the testator or the legal effect of such terms.

SCPA § 1420 supplements the general jurisdiction of the Surro-gate’s Court over matters relating to the estates and affairs ofdecedents by providing an independent proceeding for the construc-tion of a Will. However, the construction of a Will need not bea separately initiated proceeding. The court has the power toconstrue the provisions of a Will whenever necessary, whether ornot a construction is specifically requested. See In re Axe, 89 Misc.2d 86, 390 N.Y.S.2d 378 (Sur. Ct. Westchester County 1976)(construction permissible in an accounting proceeding even thoughnot originally requested).

Strategic Point: A practitioner may also use the proce-dural provisions of SCPA § 1420 as a guide in a miscella-neous proceeding for the reformation of a Will, which




differs from a construction proceeding in that it seeks toadd or change provisions of the Will, generally for taxreasons.

PRACTICE RESOURCES:




§ 3.24 Determining If Construction May Be Made

A construction may be made at any time during the administra-tion of an estate or after settlement of the fiduciary’s account solong as the following factors are present:

1. The Will must be proven and admitted to probate; see SCPA§ 1420(3);

2. There must be an ambiguity as to the intent of the testator,arising out of the language of the Will when read in itsnatural and common sense; see In re Daly, N.Y.L.J., July1, 1997, p. 35. (Sur. Ct. Richmond County); and

3. There must be a present necessity for construction; see Inre Lord, 38 Misc. 2d 7, 237 N.Y.S.2d 356 (Sur. Ct. West-chester County 1962).

The Surrogate may refuse to entertain an application for a construc-tion proceeding if the proceeding is unnecessary or not timely. SeeSCPA § 1420(1); see also In re Helfgott, N.Y.L.J., June 1, 1973,p. 20 (Sur. Ct. Kings County) (construction not timely).

Strategic Point: If the Will contains an in terrorem clause,the bringing of, or joining in, a construction proceedingwill not result in the forfeiture of a benefit under the Will.See EPTL § 3-3.5(b)(3)(E).




PRACTICE RESOURCES:




§ 3.25 Bringing Contruction Proceeding

[1] Initiating Construction Proceeding

A construction proceeding may be initiated in the court wherethe Will was probated in one of the following manners:

1. At any time, by the petition of a fiduciary named in theWill or other interested person showing the interest of thepetitioner, the names and addresses of other interestedparties, the part of the Will at issue, and the reason whya construction is necessary; see SCPA § 1420(1);

2. Within a proceeding to judicially settle an account, by anyparty’s presentation of a question as to the account thatrequires the construction of any part of the Will, whetheror not an express request for construction is made in thepleadings; see SCPA § 1420(2); or

3. Within a probate proceeding, by the request of any partymade either in the probate petition or in an answer to thepetition; see SCPA § 1420(3).

Normally, a Will cannot be construed until it has been admittedto probate. However, SCPA § 1420(3) permits the court to con-strue the provisions of a Will within the probate proceeding whereappropriate, such as to determine whether conduct would be inviolation of a Will’s in terrorem clause. See In re Grupp, 160 Misc.2d 407, 609 N.Y.S.2d 555 (Sur. Ct. Erie County 1994) (prior toadmission of Will to probate, court construed provisions of interrorem clause to be inapplicable to charitable residuarybeneficiaries).

PRACTICE RESOURCES:







[2] Giving Notice

In a construction proceeding initiated by petition, a citation mustissue to all persons interested in the question to be presented. SeeSCPA § 1420(1).

If a construction arises in an accounting proceeding, no supple-mental citation or notice of any kind is given to anyone previouslycited in the accounting proceeding. However, any interested partynot previously cited must receive a citation. All parties are boundirrespective of their appearance in the accounting proceeding orknowledge of the fact that a construction took place. See In re Axe,89 Misc. 2d 86, 390 N.Y.S.2d 378 (Sur. Ct. Westchester County1976) (denying distributee’s motion to vacate executor’s account-ing decree).

In a probate proceeding in which a request is made to construea portion of the Will, a citation must issue to all persons interestedin the determination who have not yet appeared. Also, notice mustbe given to those who have already appeared in such manner asthe court shall direct. See SCPA § 1420(3).

The provisions of SCPA § 315 regarding virtual representationapply to a construction proceeding. See SCPA § 1420(5).

PRACTICE RESOURCES:




● See Ch. 2 above (pleadings, process and virtualrepresentation).




[3] Determining Choice of Law

A Will construction is generally governed by the law of thedecedent’s domicile, except regarding the construction of provi-sions governing real property and powers of appointment. SeeEPTL § 3-5.1(b)(2). In the case of real property, the law of thesitus of the real property controls. See EPTL § 3-5.1(b)(1). Theapplicable choice of law in a proceeding involving the constructionof a power of appointment is governed by EPTL § 3-5.1(g) anddepends on the type of power of appointment and in what mannerit was created and exercised.

PRACTICE RESOURCES:







PART G: DETERMINING VALIDITY OFELECTION BY SURVIVING SPOUSE

§ 3.26 Checklist for Determining Validity of Electionby Surviving Spouse

M Determine if party can challenge surviving spouse’s exer-cise of right of election. SCPA § 1421. See § 3.28[1]below.

M Prepare and file petition and serve citation on all interestedparties. See § 3.28[2] below.

M Confirm that court has jurisdiction over property not inpossession of fiduciary. See § 3.28[3] below.

§ 3.27 Considering Relationship Between EstatesPowers and Trusts Law and Surrogate’s CourtProcedure Act

EPTL § 5-1.1-A governs the statutory right of election providedto a surviving spouse including provisions for calculating theamount of the elective share, how a surviving spouse may exercisethe right of election and the waiver or release of the right ofelection. SCPA § 1421 provides a procedural mechanism for anyinterested party to challenge or establish the validity or effect ofan election made pursuant to EPTL § 5-1.1-A.

PRACTICE RESOURCES:

● Warren’s Heaton on Surrogates’ Courts §§ 73.01.


● See Rohan, New York Civil Practice: EPTL ¶¶ 5-1.1-A[1]et seq. (in-depth discussion of statute).





§ 3.28 Obtaining Court Determination of Validity ofElection

[1] Determining Who May Petition

Any interested party may seek a determination regarding thevalidity or effect of an election by a surviving spouse to take thespouse’s statutory share either by independent petition or withina proceeding for the judicial settlement of a fiduciary’s account.See SCPA § 1421(1) and (3).

Interested parties include:

1. The electing spouse;

2. The estate fiduciary; and

3. Any person whose interests may be affected by the exerciseof the right of election, including any person who wouldbe required to make a ratable contribution to the spouse’sshare.

See SCPA § 1421(4).

An electing spouse may choose to institute a proceeding underSCPA § 1421 if the fiduciary of the estate does not accept theexercise of the election. The electing spouse may also choose toinstitute a proceeding if the election affects inter vivos transfers,thus enabling the spouse to bring the transferees before the courtas promptly as possible.

Strategic Point: If an electing spouse does not submit apetition, a fiduciary should consider filing a petition underSCPA § 1421 to ensure insulation from personal liabilityshould the fiduciary’s decision to accept the claim of theelecting spouse be proven erroneous

[2] Preparing Petition and Giving Notice

Any petition for a determination under SCPA § 1421 must befiled in the court in which the Will was probated and must includethe following information:




1. An explanation of the interest of the petitioner;

2. The names and addresses of all other interested persons;and

3. The particular question the petitioner seeks to havedetermined.

See SCPA § 1421(1).

Strategic Point: In order to expedite the proceeding, ifthe petition is brought by the electing spouse and the otherinterested parties consent to the election, either the petitionshould mention the consent of the parties or the consentingparties should be requested to join as petitioners.

Citation must issue to all interested parties and should specifi-cally state every form of relief requested. See SCPA § 1421(2).

[3] Obtaining Jurisdiction over Property Not in Possessionof Fiduciary

Because a spousal election made pursuant to EPTL § 5-1.1-Amay affect property not held by the estate fiduciary, SCPA§ 1421(5) gives the Surrogate power to determine the liability ofany party with an interest in the property. This includes the powerto fix the pro rata share of the elective share that must be paidby any person holding property that is a testamentary substituteunder EPTL § 5-1.1-A(b). See SCPA § 1421(5). However, thecourt must have in personam jurisdiction over a nondomiciliaryholding property outside of New York in order to recapture theproperty. See Estate of Roy, 147 Misc. 2d 292, 555 N.Y.S.2d 1013(Sur. Ct. Broome County 1990), modified and aff’d., 166 A.D.2d146, 570 N.Y.S.2d 385 (3d Dep’t 1991).

PRACTICE RESOURCES:


● Cox, Arenson & Medina, New York Civil Practice: SCPA¶¶ 1421.02, 1421.03, 1421.04, 1421.05, 1421.06.





● 3d Rep., Temp. Comm’n on Estates, Leg. Doc.. (1964) No.19, App. A, pp. 191–233.

● See also § 1.13 above.





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