- 1. Pursuant to Uniform Rule 207.7(c) all proof of service of process, notices of motion, and orders to show cause, must be filed two days prior to the return date.
- 2. Motions are to be made returnable only every other week rather than every week in which the process calendar is called. It is considered the responsibility of counsel to check with the clerk of the court as to the appropriate date to be entered for return of notice of motion prior to serving and filing. Any motion noticed with an incorrect date will be returned to counsel and not placed on the calendar until the correct date is inserted on the notice of motion and reserved on all respondents.
3. Where, by court order, service of process is permitted by certified or registered mail there is no need to file a signed return receipt unless directed by the court. The affidavit of service, however, must include a statement that the mailing was not returned to the sender as undeliverable.
Pleadings and Papers Filed With Court
- 4. Any pleading or paper supplemental thereto; e.g., waiver and consent, renunciation, affidavit etc., which is dated more than six months prior to date of filing, is considered stale and not accepted for filing by the court.
- 5. Where it appears that a pleading must be amended, amendment may be accomplished by the affidavit of the petitioner or petitioner's attorney unless directed otherwise by the clerk of the court.
6. No party in interest in a proceeding can act as notary for any papers filed in the proceeding.
Status of the Parties; Proof of Kinship
- 7. Pursuant to 207.17(d) Uniform Rules the court will not accept an affidavit of kinship signed by the spouse or issue of a petitioner claiming to be the sole statutory distributee.
8. Pursuant to 207.50 Uniform Rules the court will require service of process on an alleged divorced spouse unless, either a certified copy of the divorce decree or other acceptable proof of divorce is filed with the petition. Also the court may require that where the sole statutory distributee is an alleged surviving spouse, a copy of the marriage certificate be filed with the petition.
Trials
9. The calendar for the trial of contested proceedings is called on the first Monday of every month. A note of issue and statement of readiness in compliance with Uniform Rules 207.29 and statement of issues in compliance with Rule 207.30, must be timely served and filed 10 days prior to the Trial Call Calendar date requested, otherwise the proceeding will not be placed on the Call Calendar. Once a day certain and time for trial is fixed by the Surrogate, no adjournments will be granted barring extraordinary circumstances. In this respect actual engagement of counsel is considered insufficient grounds for an adjournment. Prior to the date fixed for trial, all trial counsel will be directed to meet with a member of the law department so that exhibits to be used on trial can be marked for identification and witnesses identified.
Miscellaneous
10. All pro se petitioners for either letters of administration or letters testamentary must be personally interviewed by the Chief Clerk, Deputy Chief Clerk or a member of the law department prior to filing their petition with the court.
Probate Department
- 1. The court requires the personal appearance and examination under oath by the clerk of any witness to a will offered for probate which was executed within 90 days of the date of the decedent's death. Where all the parties in interest in the proceeding are adult and competent and sign an acknowledged waiver, and consent to entry of the will to probate, the court will dispense with this requirement.
2. Any probate proceeding marked for decree subject to examination or subscribing witnesses requires that such examination be conducted within 90 days of the return date, or else objections will be deemed waived. The time for filing objections after completion of the examination of subscribing witnesses may be extended by stipulation or counsel. A decision and order encompassing this directive is forwarded to counsel after the return date (Exhibit A).
Attorney Fiduciary
- 3. (a) Where the petition for probate requests that letters testamentary issue to a person who is also an attorney, not related by blood or affinity with the decedent, the court requires that the attorney fiduciary submit an affidavit explaining his relationship with the decedent and the circumstances surrounding his nomination as executor. The attorney/fiduciary is provided with a printed notice detailing the information which is to be set forth in the subject affidavit (Exhibit B). After the required affidavit is filed, it is submitted to the Surrogate, who shall determine whether a hearing is necessary on the issue of the attorney/fiduciary' s qualifications and the facts surrounding his appointment.
(b) If the attorney/fiduciary is found to be qualified to act as executor, he or she must comply with Uniform Rule 207.60.
Preliminary Letters
- 4. (a) Any order granting preliminary letters will provide that such letters will expire 6 months after the date of issuance. The order will further provide for the petitioner to post a bond for the full amount of the estate assets alleged in the petition for probate.
- (b) A petition requesting leave to extend preliminary letters beyond 6 months must be accompanied by a cash flow statement detailing the assets marshalled and claims paid by the petitioner. Any discrepancy between the value of estate assets set forth in the cash flow statement and the original petition for probate, requires the filing of an affidavit explaining the discrepancy. If leave for extension is granted, preliminary letters will be extended only for an additional 6 months.
- 5. In addition to the common practice of requiring an affidavit and hearing regarding any bequest in the decedent's will to an attorney (Matter of Putnam), the court requires the submission of an affidavit detailing the relationship of legatee to the testator and the facts surrounding a bequest to any person having a confidential relationship with the decedent (e.g., clergyman, accountant, doctor, nurse, home care attendant, etc.). The required affidavit together with the petition is submitted to the Surrogate to determine whether a hearing on the bequest is necessary.
6. Where a cause of action for personal injury or wrongful death is listed as an asset of the estate and any of the parties in interest in the estate, either as legatees or distributees, are under a disability (infancy, incompetency, unknown, etc.) letters testamentary issued by the court will be restricted to provide that the cause of action cannot be settled or compromised without further order of the court.
Administration Department
- 1. If the petition for letters of administration sets forth a cause of action for personal injury or wrongful death as an asset of the estate, the court follows the common practice of restricting letters to provide that the administrator be prohibited from compromising or collecting the proceeds from such cause of action without further order of the court (Exhibit C). In addition the court requires that the petitioner and the petitioner's attorney both file separate affidavits (Exhibits D and E) stating that they will not compromise, settle or collect any proceeds of the cause of action without further order of the Surrogate's Court.
- 2. In order to dispense with the necessity of a bond pursuant to SCPA 805, the petitioner for letters of administration must not only submit the unanimous acknowledged consent of all distributees but also a copy of a paid funeral bill.
3. Absent a showing of special circumstances, the court will not entertain a petition for letters of administration where the sole asset of the estate is title to real property which in theory passes by operation of law without the necessity of letters of administration.
Small Estate Administration
- 4. In a proceeding under article 13 of SCPA, the court may require submission of a third party affidavit of kinship if it is alleged that the petitioner is the sole distributee of the decedent.
5. The certificate of letters of voluntary administrator, issued pursuant to article 13 SCPA, will specifically identify the alleged assets of an estate on its face, e.g., bank name account number and limit the right of the voluntary administrator to marshall only such identified assets.
Accounting Department
- 1. The court requires that a copy of the account be served with the citation on all parties in interest in the account. Proof of service must reflect such receipt, as must any waiver and consent signed by a party in interest. Expenses for photocopies and mailings of the account and citation shall be allowed as a legal disbursement.
- 2. In order for an accounting to be accepted for filing by the court, the petition must state whether or not an inventory of assets pursuant to 207.20 Uniform Rules has been filed with the court.
- 3. In any estate with gross taxable assets in excess of $108,000.00, the petitioner may either cite the State Tax Commission as a party in interest or submit proof of fixation and payment of tax prior to the entry of a final decree.
- 4. Where it appears from the papers on file that either attorney's fees or fiduciary commissions have been improperly taken in advance of an accounting, e.g., restricted or limited letters, the petition must request that such advance payment be approved by the court nunc pro tunc.
- 5. The court will not permit general language approving the account in a waiver and consent signed by a party in interest. A waiver and consent by a residuary legatee or distributee is not acceptable unless it specifically consents to every prayer for relief set forth in the petition and citation. All other interested parties need only specifically consent to relief which effects their interest.
6. Where real property is sold by a fiduciary, only the sum equal to the net proceeds of sale is to be included in Schedule A of the account and a copy of the closing statement is to be submitted with the account. All expenses incurred in connection with the sale, e.g., RPT tax; broker's commissions; attorney's fee, etc., and the satisfaction of outstanding liens e.g., mortgage; Parking Violation Bureau judgment, etc., must be deducted from gross sale price prior to entry in Schedule A.
Miscellaneous Department
1. A petition for permission to sell real property pursuant to article 19 of SCPA must be accompanied by a copy of the contract of sale and a current appraisal of the subject property.
Inventory of Assets (Rule 207.20[d])
- 2. (a) A notice of the requirements of Uniform Rule 207.20 is sent with original certificates of letters testamentary or administration (Exhibit F). In general this rule requires the filing of an inventory of the assets which constitute the gross taxable estate within 6 months after the issuance of letters.
- (b) If the required inventory is not filed 90 days after the date due, letters may be suspended and will not be reinstated until the requirements of 207.20 are complied with.
3. A petition to fix and determine attorney's fees pursuant to SCPA 2110, must allege the specific dollar amount of the fee requested and must be accompanied by an affidavit of legal services.
Compromise and Account
- 4. (a) The court requires that jurisdiction over either the defendant or the defendant's insurance carrier be obtained in any proceeding to compromise a cause of action for personal injury or wrongful death. This requirement is satisfied by either:
- (1) a letter on insurance company letterhead advising of the settlement of a cause of action for a specific dollar sum in behalf of their insured defendant;
- (2) an original signed stipulation of settlement or court certified copy of stipulation placed on the record;
- (3) a waiver and consent signed and acknowledged by an insurance company officer who has the authority to execute;
- (4) service of citation on either the insurance carrier or the named defendant in the negligence action.
- (b) A statement of whether or not all funeral and medical expenses have been paid must be set forth in the petition.
- (c) A copy of the attorney's retainer agreement must be filed with the petition, regardless of whether the parties in interest are competent adults and have consented to the fee requested.
- (d) Regardless of whether the petition requests that settlement proceeds be allocated to wrongful death (which are nontaxable) or personal injury (which are taxable as estate assets), the court may require that the NYS Tax Department be cited for any settlement in excess of $108,000.00 and the U.S. Internal Revenue Department be served for any settlement in excess of $600,000.00.
- (e) The waiver and consent of any beneficiary or other interested party in the proceeding must comply in form and content with rule 5 of the accounting department.
- (f) A formal judicial account must be filed along with the petition for leave to compromise where:
- (1) either any party in interest is under a disability e.g., infancy, incompetency;
- (2) there are disputed creditor's claims or;
- (3) there are estate assets other than settlement proceeds; or
- (4) the petitioner seeks to compromise both a cause of action for personal injury and wrongful death.