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Busson & Sikorski

Surrogate´s Court Proceedings


Busson & Sikorski provides services to clients in the Administration of Estates and in the defense or prosecution of various Estate Proceedings. The court with jurisdiction over these proceedings in New York State is the Surrogate´s Court. There is one Surrogates´ Court for each County, and the venue of an estate is usually limited to the county in which the decedent resided at the time of death.

The most common Surrogate’s Court proceedings are described below:

Probate

Probate is a proceeding brought to approve a Will, and appoint the executors to execute the provisions of the Will.  While a Will may nominate executors, the executors do not have any official power until their appointment is confirmed by the court. It is always possible that an heir, more formally known as a distributee, could contest the probate of the Will.  Busson & Sikorski represents clients both in the probate or the contest of Wills.

Administration

When a person dies without a Will (Intestate), their Estate is administered according to statutory rules of inheritance contained in the New York Estates, Powers and Trust Law (EPTL).  The fiduciary appointed in Administration is an Administrator.  The Administrator has many of the powers of an Executor, except that real estate owned by a decedent is usually devised directly to the distributees, except when for cause the Administrator petitions the court to allow the Administrator to sell the realty. The Administration is responsible for the orderly management of an estate.

Accounting

An Accounting is the process by which the fiduciary presents the handling of the assets of an Estate.   An Accounting can be either formal or informal.  Formal Accountings are court proceedings, in which the court is asked to review the administration of an Estate by a fiduciary.  Formal Accounting may be contested.  The Formal Accounting, also called a Judicial Accounting, is a review of all financial transactions and decisions from the beginning of the appointment of the fiduciary.

Kinship (Heirship) Proceedings

Occasionally, there are contests as to who are the distributees (heirs) of an estate.  This is especially true when there are unknown, foreign or non-marital distributees.  The question of unknown kinship can arise even in Probate proceedings, as a Will can not be approved for probate unless all possible distributees are notified.  Kinship problems arise frequently in Administration proceeding, as kinship is the only basis to inherit in Administration. When kinship problems arise in Probate proceedings, the underlying issue is the court’s jurisdiction over all parties entitled to notice of the probate, and identifying those persons entitled to object to the probate.
In addition to working with Genealogists to find heirs, our firm personally participates in the investigation of kinship issues, and firm members have traveled abroad, including: Italy, Brazil, Portugal, Lebanon, the Dominican Republic and Greece to conduct in kinship investigations.

Will Construction Proceedings

After a Will has been admitted to probate, occasionally there may be a dispute as to the meaning of certain provisions in the Will.  These disputes may be determined by the court in a Construction proceeding.

Ancillary Administration for “Foreign” Estates

Foreign Estates includes Estates of both foreign countries and ‘foreign’ states such as New Jersey.  Estate Administrators and Executors who are appointed under the laws of a ‘foreign’ jurisdiction and who need to recover assets in the State of New York may apply in New York for Ancillary Letters.  This is usually required for Executors or Administrators appointed by the courts of foreign countries, and Ancillary Letters may also be required for Executors and Administrators appointed by the courts of other states of the United States when the asset in New York is real estate.

Guardianship

The Surrogate’s Court has jurisdiction to appoint Guardians for minors or persons under a disability.  Guardianship will generally be required for a distributee (heir) or beneficiary who is a minor.

Proceedings to Open Safe Deposit Box

Occasionally, someone dies, and the Will can not be immediately found, if it is believed that the decedent’s Will is in a Safe Deposit Box or an otherwise inaccessible apartment or home, a proceeding can be commenced to search the Box or Home for the Will.

Surviving Spouses Right of Election

A spouse can receive a mandatory ‘elective’ share of a deceased spouses’ estate, even if the surviving spouse is disinherited by the deceased spouse´s Will. This right also extends to assets of the deceased spouse which are held jointly with other parties. These assets are termed ‘Testamentary Substitutes’, and a proceeding may be brought to recover the surviving spouses mandatory Elective Share.

Court Filing Fees

The Surrogate’s Court filing fees are based upon the value of the estate assets for Administration, Probate and Accounting proceedings.  Miscellaneous proceedings have a separate schedule of fees, which are all less that the usual Probate fees.  The schedule of court filing fees are set forth in Surrogate’s Court Procedure Act Sec. 2402 (7).

Executor´s and Administrator´s Commissions

Executor’s and Administrator’s Commissions are fixed by statute, but Commissions may not be paid without either the approval of the court or the agreement of all parties.  Commissions are computed on a sliding scale, and depend on the amount of estate money both marshaled and disbursed by the Fiduciary.  Usually, real estate does not carry commissions except for limited exceptions.
Commissions paid to an Executor or Administrator are considered Taxable Income, and must be reported as such in the Fiduciary’s income tax return.  The Commissions of Executors and Administrators are set forth in (SCPA) Sec. 2307.