1. 1. Motions must be made returnable every week on the day on which the process calendar is called. Counsel must 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 served on all respondents. Oral argument is required on all motions.

2. 2. Where 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

3. 1. Any pleading, or paper supplemental thereto (e.g.,waiver and consent, renunciation, affidavit, etc.) that is dated more than six months prior to date of filing is considered stale and will not be accepted for filing by the court.

4. 2. No party in interest in a proceeding can act as a notary for any papers filed in the proceeding.

   Trials

   The calendar for the trial of contested proceedings is called every Monday. When a holiday falls on a Monday, the calendar is called on Tuesday of the same week.

   Self-Represented Petitioners

   All self-represented petitioners for letters testamentary must be personally interviewed by the Chief Clerk, Deputy Chief Clerk, or one of their designees, prior to filing their petition with the court.

   Probate Department

5. 1. Personal appearance and examination under oath by the clerk must be had of any witness to a will offered for probate that 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.
6. 2. When a probate proceeding is marked for decree subject to examination of subscribing witnesses, such examination shall be conducted on the date set on the return date of process or, if no date has been set, then within 90 days of the return date, or else objections will be deemed waived. The time provided for by statute for filing objections after completion of the examination of subscribing witnesses may be extended by stipulation of counsel filed with the court and so ordered.

7. 3. A petition requesting leave to extend preliminary letters beyond 180 days must be accompanied by a cash flow statement detailing the assets marshaled 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 for an additional 180 days.

   Administration Department

8. 1. 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.
9. 2. In a proceeding under SCPA Article 13, 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.

10. 3. The certificate of letters of voluntary administration issued pursuant to SCPA Article 13 will specifically identify the alleged assets of an estate on its face, e.g., bank name and account number, and will limit the right of the voluntary administrator to marshal only such identified assets.

    Exempt Property for Benefit of Family - EPTL 5-3.1

    Certificates may be issued to a spouse, or children under the age of 21 years of the decedent, identifying exempt property set forth in EPTL 5-3.1, when necessary.

    Accounting Department

11. 1. A copy of the account must be served with the citation on all parties interested in the account. Proof of service must reflect service of both citation and account, as must any waiver and consent signed by a party. Expenses for photocopies and mailings of the account and citation shall be allowed as a legal disbursement.
12. 2. General language approving the account, or compromise and account, shall not be permitted in a waiver and consent signed by a party. 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 affects their interest.
13. 3. 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 fees, etc.) and the satisfaction of outstanding liens (e.g., mortgage, Parking Violation Bureau judgments, etc.), must be deducted from the gross sale price prior to entry in Schedule A.
14. 4. A petition for permission to sell real property, pursuant to SCPA Article 19, must be accompanied by a copy of the contract of sale and a current appraisal of the subject property.

15. 5. 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

16. 1. Jurisdiction over either the defendant or the defendant's insurance carrier must be obtained in any proceeding to compromise a cause of action for personal injury or wrongful death. This requirement is satisfied by either:
17. (a) a letter on insurance company letterhead advising of the settlement of a cause of action for a specific dollar sum on behalf of their insured defendant;
18. (b) an original signed stipulation of settlement or court-certified copy of stipulation placed on the record;
19. (c) a waiver and consent signed and acknowledged by an insurance company officer who has the authority to execute; or
20. (d) service of citation on the insurance carrier and the named defendant in the underlying action.
21. 2. A copy of the attorney's retainer agreement must be filed with the petition regardless whether the parties are competent adults and have consented to the fee requested.
22. 3. A formal judicial account must be filed along with the petition to compromise where either:
23. (a) any party is under a disability (e.g., infancy, incompetency);
24. (b) there are disputed creditor's claims;
25. (c) there are estate assets other than settlement proceeds; or

26. (d) the petition seeks to compromise both a cause of action for personal injury and for wrongful death.

    Variance

    Any of the rules set forth herein may be varied in the discretion of the court for good cause shown.

Process Calendar

The Process Calendar is called every Thursday. When a holiday falls on a Thursday, the calendar is called on Wednesday of the same week.

Service of Process and Proof of Service