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Chapter 3
PROBATE PROCEEDINGS
Synopsis
PART A:
§ 3.01
PROCEDURAL CONTEXT
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]
[2]
[3]
§ 3.08
Determining Who Must Receive Citation
Including Required Contents in Citation
Serving Citation
Sending Notice of Probate
[1]
[2]
[3]
PART D:
Determining Who Must Receive Notice of Probate
Including Required Contents of Notice of Probate
Mailing Notice of Probate
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]
[2]
[3]
§ 3.12
Excluding Attesting Witnesses from Examination by Court
by Producing Self-Proving Affidavit
Dispensing with Examination Where Attesting Witness Is
Dead, Absent from State or Incompetent
Ignoring Testimony of Hostile or Forgetful Attesting
Witness
Examining Interested Parties
3–1
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[1]
[2]
[3]
[4]
[5]
[6]
[7]
Determining Who May Be Examined
Determining Who Is Entitled to Examine Witnesses
Determining When Witnesses May Be Reexamined
Keeping Examinations Within Limited Scope
Determining Time and Place of Examinations
Recording Testimony
Determining Responsibility for Examination Costs
§ 3.13
Proving Lost or Destroyed Will
§ 3.14
Proving Nuncupative or Holographic Will
§ 3.15
Filing Objections
[1]
[2]
[3]
§ 3.16
Determining Who May File Objections
Considering Form and Timing of Objections
Including Proper Allegations Within Objections
Giving Notice and Serving Citation Upon Filing of Objections
[1]
[2]
[3]
§ 3.17
Determining Who Must Receive Notice of Objections and
Citation
Including Required Contents in Citation
Serving Citation
Obtaining Decree
[1]
[2]
PART E:
Meeting Prerequisites for Issuance of Decree
Including Required Contents in Decree
OBTAINING LETTERS TESTAMENTARY
§ 3.18
Checklist for Obtaining Letters Testamentary
§ 3.19
Obtaining Letters Testamentary
[1]
[2]
[3]
§ 3.20
3–2
Determining When and to Whom Letters Testamentary
May Issue
Obtaining Supplemental Letters
Renouncing or Failing to Qualify As Executor
Obtaining Preliminary Letters Testamentary
[1]
[2]
[3]
[4]
Determining If Preliminary Letters Testamentary May
Issue
Determining Who May Petition for Preliminary Letters
Testamentary
Preparing Petition for Preliminary Letters
Meeting Other Requirements for Obtaining Preliminary
Letters
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PROBATE PROCEEDINGS
[5]
[6]
[7]
§ 3.21
Understanding Powers and Duties of Preliminary
Executor
Revoking Preliminary Letters Testamentary
Obtaining Commissions for Preliminary Executor
Obtaining Letters of Administration, c.t.a.
[1]
[2]
[3]
[4]
[5]
PART F:
Determining If Letters of Administration c.t.a. Are
Appropriate
Determining Who May Receive Letters of Administration,
c.t.a.
Preparing Petition
Serving Citation
Determining If Court May Refuse to Issue Letters of
Administration, c.t.a.
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]
[2]
[3]
PART G:
Initiating Construction Proceeding
Giving Notice
Determining Choice of Law
DETERMINING VALIDITY OF ELECTION BY SURVIVING SPOUSE
§ 3.26
Checklist for Determining Validity of Election by Surviving
Spouse
§ 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]
[2]
[3]
Determining Who May Petition
Preparing Petition and Giving Notice
Obtaining Jurisdiction over Property Not in Possession of
Fiduciary
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PART A: PROCEDURAL CONTEXT
§ 3.01 Procedural Context—Probate Proceedings
Probate is the process of proving and receiving court recognition
that a decedent’s Will is valid. If the Will was executed in
accordance with the law by a testator who was competent to make
a Will and who was not under any restraint, then the court will
admit the Will to probate as a valid Will for the purpose of passing
real and personal property. See SCPA § 1408. SCPA Article 14
governs the probate proceeding, which begins when a petition to
admit the Will to probate is filed with the Surrogate’s Court in
the county where the decedent was domiciled at death. Procedures
for proving a Will including requirements for the examination of
attesting witnesses and for proving lost, holographic and nuncupative Wills are provided.
In some instances, it may be inappropriate to offer a Will for
probate. For example, if there are no probate assets, if a small estate
administration proceeding would be sufficient to administer the
probate assets that do exist or if disposition by the Will does not
vary from what would occur by operation of law, then the Will
should not be offered for probate.
SCPA Article 14 also provides for the following: procedures for
the issuance of preliminary letters testamentary and letters of
administration, c.t.a. (with the Will annexed); proceedings governing the construction of a Will and proceedings to determine the
validity of an election by a surviving spouse.
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PROBATE PROCEEDINGS
§ 3.03
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 § 3.05
below.
Documents include death certificate, original will and
codicils, copy of will and affidavit of comparison,
affidavit of attesting witnesses, attorney certification,
notice of probate, oath of testamentary trustees, filing
fee, and self-addressed stamped envelope.
File waiver and consent for each party waiving service
of citation.
File citation if there are necessary parties who have not
signed waiver and consent.
File affidavit of heirship and family tree in certain
instances. 22 NYCRR § 207.16
§ 3.03 Determining Who May Offer Will for Probate
Pursuant to SCPA § 1402, any of the following people may
petition 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 incompetent
or incapacitated legatee or devisee;
4. A creditor of the decedent;
5. The fiduciary of a deceased sole beneficiary or of a deceased
residuary beneficiary; see SCPA §§ 1402(1)(b) and 1418;
6. Any person interested in the estate or the fiduciary of any
deceased person interested in the estate;
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7. Any party to any action brought or about to be brought in
which the decedent, if living, would be a party; and
8. The public administrator or county treasurer, but only on
order of the court, provided that the Will has been filed with
the court and a proceeding for its probate has not been
instituted.
An interested person in the estate includes a beneficiary’s
representatives, fiduciaries, assignees and a distributee taking under
the laws of intestacy.
The court, either on its own, or on the petition of any person
authorized to present a petition for the probate of a Will, may order
any person reasonably believed to have knowledge of the whereabouts of a Will or destruction of a Will to appear in court and
be examined. The court may also order that person to produce and
file in court a Will of the decedent that is in the control of such
person. 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 Administration §§ 5.01, 7.01 (probate petition).
● Second Report of the EPTL-SCPA Legislative Advisory
Committee, Leg. Doc. (1993), No. 2, pp. 26–27.
§ 3.04 Preparing Probate Petition
The probate petition must be verified and must satisfy the
requirements of SCPA §§ 304 and 1402, including:
1. The name, citizenship and domicile of the petitioner and
the 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 for
probate, and any other will of the same testator on file with
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PROBATE PROCEEDINGS
§ 3.04
the court, including the dates of execution and the names
of all witnesses;
5. The name, relationship, domicile and mailing address of all
parties required to be cited or to whom notice must issue,
including distributees, legatees, devisees, fiduciaries named
in the Will and persons adversely affected by probate of
the Will;
6. If a party’s interest arises through the death of a primary
legatee, a statement explaining the party’s interest and his
or her relationship to the decedent and to the deceased
legatee;
7. An estimate of the value of decedent’s probate estate that
passes under the Will;
8. An affirmation by the petitioner that no other Will or codicil
of the decedent is on file in the court and that after a diligent
search no subsequent instrument was found; and
9. A verification of the petition, a designation of the clerk for
service of process and, if the petitioner is also the nominated
executor, an oath of the nominated executor.
t Warning: If beneficiary’s or fiduciary’s name at the
time of probate is different from the name listed in the Will
due to either a misspelling, change of name, or otherwise,
then an explanation regarding the name change should be
included in the petition.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 41.03.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1402.01, 1402.02, 1402.05.
● New York Practice Guide: Probate and Estate Administration § 7.01.
● Bender’s Forms for the Civil Practice Form No. SCPA
1402:1 (Official Form P-1, Petition for Probate).
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● See Probate Proceeding Checklist (P-CHKLST), Surrogate’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 for
Probate
In addition to the petition, the following must also be filed with
the court:
1. A certified death certificate. See 22 NYCRR § 207.15(b).
If the petitioner alleges that the testator has disappeared and
is believed to be dead, the Surrogate has the power, after
having taken proof of the facts, to issue a decree determining
that the individual is dead and admitting the Will to probate.
See SCPA § 1408(3). The court must first conduct a hearing
to review the search conducted for the decedent and the facts
surrounding 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 a
court or public office and cannot be removed or must be
returned to such other jurisdiction, the court may be satisfied
with either (a) a duly certified or authenticated copy of the
Will from the court where the original is filed, or (b) the
temporary production of the Will by a representative of the
foreign jurisdiction. See SCPA § 1404(2); In re Carter, 123
Misc. 2d 940, 475 N.Y.S.2d 230 (Sur. Ct. Yates County
1984) (admitting to probate a certified copy of a Will when
original was on file in a Florida probate court). In such a
case, the decree admitting the Will to probate must recite
the full text of the Will. See SCPA § 1404(2).
t Warning: Practitioners should not remove staples from
an original Will when photocopying the Will. Evidence
of the removal of staples creates a presumption of tampering with the Will. If the staples are removed, the petitioner
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§ 3.05
must provide the court with an affidavit explaining the
circumstances at the time the probate petition is filed.
3. A copy of the Will and any codicils thereto along with an
Affidavit of Comparison stating that the copy is a true copy
of the original. See 22 NYCRR § 207.19(a) and Official
Form P-13 (Affidavit of Comparison).
4. If the Will is in a foreign language, a court-certified
translation of the Will.
5. A copy of any agreement creating a revocable trust to which
the decedent’s assets are directed to be distributed pursuant
to 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 the
decedent was survived by only one distributee or no distributees, or if the distributees are grandparents, aunts, uncles,
first cousins, or first cousins once removed from the decedent, the petitioner must provide the court with an Affidavit
of Heirship and a Family Tree executed by a person who
does not have an interest under the Will.
7. Affidavit of Attesting Witnesses. See SCPA § 1406; Official Form P-3 (Affidavit of Attesting Witness).
8. A copy of the trust document or other instrument creating
any power of appointment exercised in the Will. See 22
NYCRR § 207.19(d).
9. Attorney Certification. See 22 NYCRR § 207.4(b). Official
Surrogate’s Court Forms produced on computers or word
processors must be accompanied by an affidavit by the
attorney stating that all forms submitted to the court are the
same as the official forms and that the substantive text has
not 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 and
indicating whether he or she or the law firm with which
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he or she is affiliated will act as counsel. The affidavit must
also state whether he or she was the attorney draftsperson
of the Will.
11. Attorney Disclosure Acknowledgment. See SCPA § 2307-a.
If the attorney-draftsperson is the nominated executor under
the Will, the attorney-draftsperson must disclose to the
testator that he or she may receive attorney’s fees as well
as full statutory commissions for acting as executor. The
testator must acknowledge such disclosure in writing and
the written acknowledgement must be filed in court as part
of the probate proceeding; otherwise, the commissions of
the attorney-executor will be limited to one-half of the
statutory amount.
12. Waiver of Commissions. If the nominated executor has
agreed to waive statutory commissions in whole or in part,
or if the Will restricts commissions, the nominated executor
may be required to file an affidavit confirming his or her
agreement to act subject to the agreed upon commissions
or the commissions allowed by the Will.
13. Waiver and Consent for each party waiving service of
citation. See Official Form P-4 (Waiver of Process; Consent
to Probate).
14. A Notice of Probate together with proof by affidavit of the
mailing of a copy of the notice to each party required to
be named in the notice. See SCPA § 1409(2).
15. Oath of Trustee. See Official Form P-1 (Petition for Probate). If the probate petition also requests that Letters of
Trusteeship be issued under the Will, an Oath and Designation of Trustee, executed by the nominated trustee, must
also be filed with the petition.
16. Self-addressed stamped envelope. Depending on the county,
the petitioner may need to submit a self-addressed stamped
envelope to the court in order to receive a copy of the decree
and letters testamentary. See Probate Proceeding Checklist
(P-CHKLST), Surrogate’s Court Checklists, at: www.courts.state.ny.us/forms.surrogates/pdfs/fouth_checklists.pdf.
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17. Filing Fee. See SCPA § 2402(7). The fee is based on the
value of the decedent’s probate assets and must be filed with
the petition.
Strategic Point: Most courts will not accept a personal
check from the petitioner unless the petitioner is also an
attorney. The attorney should bring any of the following:
a firm check, money order or certified check for the filing
fee and for any certificates of letters.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 41.03, 41.11.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1404.05, 1404.06, 1408.05.
● New York Practice Guide: Probate and Estate Administration §§ 7.02, 7.10.
● Bender’s Forms for the Civil Practice Form No. SCPA
1402:1 (Official Form P-1, Petition for Probate of Will),
Form No. SCPA 1402:6 (Official Form P-13, Affidavit of
Comparison to Attach to Copy of Will), Form No. SCPA
1402:10 (Official Form FT-1, Family Tree), Form No.
SCPA 1403:4 (Official Form P-4, Waiver and Consent to
Probate of Will), Form No. SCPA 1404:1 (Official Form
P-3, Affidavit of Attesting Witness).
● See Probate Proceeding Checklist (P-CHKLST), Surrogate’s Court Checklists, at www.courts.state.ny.us/
forms.surrogates/pdfs/fouth_checklists.pdf.
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§ 3.06
NEW YORK SURROGATE’S COURT
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PART C: SERVING PROCESS AND NOTICE
§ 3.06 Checklist for Serving Process and Notice
M Determine who is required by statute to be served with
citation. SCPA § 1403. See § 3.07 below.
M Prepare citation and file same with court clerk, who will
fill 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 of
notice 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 served
with a citation:
1. The distributees of the decedent (that is, those who would
inherit 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 primary
executor or executors, unless such person is the petitioner;
Strategic Point: A nominated successor executor need not
be served with a citation unless the primary executor
cannot act or fails to qualify.
3. The person or persons designated in the Will as a beneficiary, executor, trustee, or guardian whose rights or interests
are adversely affected by any other instrument offered for
probate that is later in date of execution;
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4. Any person designated as beneficiary, executor, trustee, or
guardian in any other will of the same testator filed with
the court whose rights or interests are adversely affected
by the instrument offered for probate;
5. The decedent, if the petition alleges that the decedent is
believed to be dead;
6. The state tax commission, if the decedent was a
nondomiciliary;
7. The fiduciary of any deceased person to whom process is
required 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 the
petitioner does not know whether any exist;
9. Any party adversely affected by the decedent’s exercise of
a power of appointment in the Will; and
10. The public administrator in any case where not all of the
decedent’s distributees are cited or where the distributees
cited are related in the fourth degree of consanguinity or
more remotely. See SCPA §§ 1123(2)(i)(2) and 1215(b).
Strategic Point: The name of every party who must
receive a citation must be listed in paragraph six of the
probate petition.
PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administration § 6.02.
● Bender’s Forms for the Civil Practice Form No. SCPA
1402:1 (Official Form P-1, Petition for Probate of Will).
[2] Including Required Contents in Citation
Although a citation is technically issued by the court, the
petitioner should prepare the citation for the court to issue and file
it with the petition. The citation must state the following
information:
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1.
2.
3.
4.
5.
Name of the petitioner;
Name and domicile of the decedent;
Whether the Will is nuncupative;
Date of the Will and any codicils thereto;
Name of the party to whom a fiduciary appointment is to
be made;
6. Where and when any person objecting to the probate of the
Will may file objections (the return date); and
7. Any special relief being requested.
PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administration § 6.02.
● See Bender’s Forms for the Civil Practice Form No. SCPA
1403:1 (Official Form P-5, Citation).
[3] Serving Citation
The clerk of the court will complete the citation by filling in
the date and time for a return date, which will depend on the court’s
schedule and on whether the parties to be served are within the
State of New York and the United States.
Citation must be served by the petitioner in accordance with the
rules of SCPA §§ 307 and 308 and the Uniform Rules for Surrogate’s Court § 207.7. Service must include a copy of the Will and
any codicils. See 22 NYCRR § 207.19. Proof of service by
affidavit must then be filed with the court.
s Timing: Proof of service should be filed at least two
days before the return date and should state clearly the date,
time, and place of service and the name of the person
served. See Official Form P-7 (Affidavit of Service of
Citation).
Any person who is over the age of 18, competent and required
to be served with a citation may waive such service by executing
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a waiver and consent. Each person executing a waiver must be
given a copy of the Will and any codicils. The waiver must state
that a copy of the Will and any codicils to it were provided and
must specify the date of the Will and codicils. See SCPA § 401(4);
22 NYCRR § 207.19; see also Official Form P-4 (Waiver of
Process; Consent to Probate).
The court will appoint a guardian ad litem to represent any
person required to be cited who is under a disability pursuant to
SCPA § 403(2).
All of the rules of SCPA § 315 regarding virtual representation
apply in determining who must receive citation.
t Warning: Because horizontal virtual representation is
available only if the Will so provides, it is unavailable in
a 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 Administration §§ 6.03–6.05.
● Bender’s Forms for the Civil Practice Form No. SCPA
1402:1, 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 of
Service 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 through
citation (or execution of a waiver), each of the following parties
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must be mailed a Notice of Probate. The notice makes the party
aware of his, her or its interest under the Will but does not confer
jurisdiction 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 a
charitable bequest either to an unnamed charity or of an
unspecified amount, including a residuary bequest; and
7. The party upon whom personal service of process is required to be made pursuant to SCPA § 307(4) and (5) with
respect to any infant or incompetent required to receive
notice of probate.
See SCPA § 1409.
Exception: Although not required by statute, many courts
will require that the New York attorney general receive
notice of probate even if the only charitable bequest is that
of a specific dollar sum to a named charity.
The name of every party who must receive notice of probate
must be listed in paragraph seven of the probate petition.
If an interest under the Will is given to a class of persons upon
the happening of a future event, it is sufficient to give Notice of
Probate to only those persons in the class who are already in being
at the time of the decedent’s death. See SCPA § 1409(1)(a) (which
parallels SCPA § 315(2)(a)(i)). If an interest under the Will is
limited to a party who either has been named in the Notice of
Probate or has received or waived citation, and such interest is
further limited, upon the happening of a future event, to a class
of 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)).
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PROBATE PROCEEDINGS
§ 3.08[3]
PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administration § 7.04.
● See Bender’s Forms for the Civil Practice Form No. SCPA
1402:1 (Official Form P-1, Petition for Probate of Will).
[2] Including Required Contents of Notice of Probate
The
1.
2.
3.
Notice of Probate must include the following information:
Name and domicile of the decedent;
Date of the Will and any codicils thereto;
A statement that the Will has been or will be offered for
probate;
4. Name and address of the petitioner; and
5. Name, address and nature of interest of each party required
to receive notice.
PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administration § 7.04.
● See Bender’s Forms for the Civil Practice Form No. SCPA
1409:1 (Official Form P-6, Notice of Probate).
● SCPA § 1409(1).
Strategic Point: For the sake of privacy, the Notice of
Probate should recite only a general description of each
party’s interest, such as “general legatee.” However, the
petition 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 court
along with proof by affidavit of its mailing to each party required
to receive notice. See SCPA § 1409(2).
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Strategic Point: The Official Form of Notice of Probate
states that the Will either has been or will be offered for
probate. Thus, the practitioner is advised to mail notices
prior to filing the petition and file proof of mailing at the
same time as the probate petition is filed, thus saving the
need for a second trip to court. See Official Form P-6
(Notice of Probate).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 41.08.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1403.01 et seq., 1409.01, 1409.02, 1409.03, 1409.04.
● New York Practice Guide: Probate and Estate Administration § 7.04.
● Bender’s Forms for the Civil Practice Form No. SCPA
1402:1, Form No. SCPA 1409:1 (Official Form P-6, Notice
of Probate).
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PROBATE PROCEEDINGS
§ 3.09
PART D: NAVIGATING THROUGH PROBATE
PROCEEDING
§ 3.09 Checklist for Navigating Through Probate
Proceeding
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 by
court of attesting witnesses.
Determine if there is any reason why Court might not
honor self-proving affiant.
M If there is no self-proving affidavit, then obtain and file
affidavits of attesting witnesses. SCPA § 1406(1).
Request court to dispense with testimony of witness
who is dead, absent from state, incompetent or
forgetful.
M If original Will is lost, prove contents of Will. SCPA
§ 1407. See § 3.13 below.
M Offering additional proof to probate nuncupative or holographic Will. SCPA § 1404. See § 3.14 below.
M If representing potential objectant, determine if client has
standing to object. SCPA § 1410. See § 3.18[2] below.
M Decide whether to examine certain interested parties (that
is, 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 objections. See § 3.16 below.
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M If representing proponent of Will, file citation within 30
days 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 Attesting
Witnesses
Generally, at least two of the attesting witnesses must be
produced and examined by the court. See SCPA § 1404(1).
The proponent of the Will has the burden of producing the
attesting witnesses, but the estate must generally bear the expense
of producing them. See In re Westover, 145 Misc. 2d 469, 546
N.Y.S.2d 937 (Sur. Ct. Fulton County 1989) (holding that the
expenses of taking the testimony of a subscribing witness by
commission are borne by the estate).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 113.01, 115.07.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶ 1404.01.
● New York Practice Guide: Probate and Estate Administration § 8.07.
§ 3.11 Excluding Attesting Witnesses from
Examination by Court
[1] Excluding Attesting Witnesses from Examination by
Court by Producing Self-Proving Affidavit
The attesting witnesses may make an affidavit attesting to the
validity of the execution of the Will and the testator’s competency
to make a Will. Either the testator or, after his death, the nominated
executor, the proponent of the Will, or the attorney for the
proponent of the Will may request such an affidavit from the
witnesses. The witnesses must be shown either the original will
or a court-certified copy. See Official Form P-3 (Affidavit of
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PROBATE PROCEEDINGS
§ 3.11[1]
Attesting Witness). Such an affidavit will be sufficient to dispense
with the testimony of the witnesses before the court unless objections are raised to the probate of the Will. See SCPA § 1406(1).
Strategic Point: A self-proving affidavit should be used
whenever possible, because it obviates the necessity of
ascertaining dead or locating missing witnesses after the
testator’s death. Practitioners should have the witnesses
execute the self-proving affidavit at the time the Will is
executed.
A self-proving affidavit may not be honored by the court if:
1. The Will contains changes or mutilations or the appearance
of 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 counterparts
are produced;
4. The Will was executed within 90 days of the decedent’s
death;
5. The attorney-draftsman or member of his family is a beneficiary under the Will;
6. The testator is blind or otherwise unable to execute a Will
in 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 the
probate of the Will, many courts will allow a self-proving
affidavit even if the Will was executed within 90 days of
the decedent’s death.
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PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administration §§ 8.01, 8.02.
● Bender’s Forms for the Civil Practice Form No. SCPA
1406:1 (Official Form P-3, Affidavit of Attesting).
● In re Lipin, N.Y.L.J., Mar. 29, 1982, p. 13 (Sur. Ct. New
York County)
[2] Dispensing with Examination Where Attesting Witness
Is Dead, Absent from State or Incompetent
If at least one witness has been examined, the court may dispense
with the testimony of a second deceased or incompetent witness
or a second witness who cannot, with due diligence, be located
within the state and admit the Will to probate without additional
proof. See SCPA § 1405(1).
If all of the attesting witnesses are dead, incompetent or absent
from the state and their testimony has been dispensed with, the
Will may be admitted to probate upon proof of both the testator’s
handwriting and the handwriting of at least one of the witnesses
and other facts necessary to prove the validity and due execution
of 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 witness
by affidavit supported by a death certificate for each deceased
witness. See Official Form P-8 (Application and Order for Dispensing with Testimony of Attesting Witness).
If a witness is absent from the state but the witness’ testimony
can be obtained by reasonable diligence, a party may demand that
the witness’ testimony be taken by commission. See SCPA
§ 1405(2).
PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administration § 8.07.
● Bender’s Forms for the Civil Practice Form No. SCPA
106:43 (Official Form P-8, Application to Dispense with
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PROBATE PROCEEDINGS
§ 3.12[1]
Testimony of Attesting Witness), Form No. SCPA 106:44
(Official Form P-9, Affidavit Proving Handwriting).
[3] Ignoring Testimony of Hostile or Forgetful Attesting
Witness
If an attesting witness has forgotten the execution of the Will
or testifies against due execution and at least one other witness
has been examined, the court may admit the Will to probate upon
the testimony of just the one other witness and other facts sufficient
to prove the validity and due execution of the Will. See SCPA
§ 1405(3). If both witnesses cannot remember the execution or
testify against the Will, the court can admit the Will to probate
provided there is sufficient other proof that the Will is valid. See
In 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 the
inability of attesting witnesses to clearly recall circumstances
surrounding 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.
● New York Practice Guide: Probate and Estate Administration § 8.07.
● Bender’s Forms for the Civil Practice Form No. SCPA
1404:1, 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 after
the filing of objections;
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2. The person who prepared the Will either before or after the
filing of objections; and
3. The nominated executors and the proponents of the Will
either before the filing of objections if the Will contains
an 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 person
who met with the testator and took drafting instructions is considered to be the person who prepared the Will. See SCPA § 1404(6).
Nonparty witnesses, such as medical professionals who attended
to 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 proceeding
to examine a witness, generally the courts will limit the right to
examine witnesses to those parties who are entitled to file objections under SCPA § 1410. See In re Peckolick, 167 Misc. 2d 597,
639 N.Y.S.2d 675 (Sur. Ct. New York County 1996) (refusing to
allow executor named in a prior will to examine witnesses because
such party had no basis for filing objections).
[3] Determining When Witnesses May Be Reexamined
No person who has been examined under SCPA § 1404 may
be examined again in the same proceeding under any other provision 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 from
denial.
See In re Cesario, N.Y.L.J., Oct. 19, 1993, p. 32 (Sur. Ct.
Westchester County) (enumerating factors considered by court in
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PROBATE PROCEEDINGS
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determining whether to allow second examination of witnesses);
In re Seskin, N.Y.L.J., Dec. 23, 1987, p. 14 (Sur. Ct. Nassau
County) (allowing second examination of witnesses after considering convenience, time, location and prejudice).
[4] Keeping Examinations Within Limited Scope
The scope of examinations under SCPA § 1404 is limited to
those issues that are relevant to the validity and due execution of
the Will. See SCPA § 1404(4). Issues regarding construction are
not proper subjects for a SCPA § 1404 examination.
Absent the showing of special circumstances, the subject matter
of examinations in a contested probate proceeding is limited to
circumstances occurring within the three years prior to the date of
execution of the Will and two years after. See 22 NYCRR
§ 207.27.
Prior to the filing of objections, all rights with respect to
document discovery and, after objections are filed, all discovery
rights granted under CPLR Article 31, are afforded the party
conducting the examination. See SCPA § 1404(4); 22 NYCRR
§ 207.27; see also CPLR Article 31.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 112.02, 115.07.
● 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: CPLR
Ch. 3101.
● New York Practice Guide: Probate and Estate Administration § 8.03.
● LexisNexis AnswerGuide New York Civil Litigation § 6.01
et 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 under
SCPA § 302(3);
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2. Cannot be conducted until jurisdiction has been obtained
over all necessary parties to the proceeding; and
3. Must be held at the courthouse, unless otherwise directed
by the court.
See 22 NYCRR § 207.28.
In an uncontested probate proceeding, if a witness is outside the
jurisdiction of the court and cannot conveniently come to the court,
the court may direct that the witness be examined in the Surrogate’s
Court of another county, in an appropriate court of another state
or county, or before a commissioner designated by the court. See
SCPA § 507(2); 22 NYCRR § 207.22(a).
[6] Recording Testimony
In all cases, proof must be reduced to writing and the testimony
of the witnesses recorded either by the probate clerk or, if a party
other than the court is conducting the examinations, by a stenographer. See SCPA § 1404(4).
[7] Determining Responsibility for Examination Costs
If examinations are conducted before objections are filed, the
costs of the initial examination of the first two attesting witnesses
within the state or the examination of the one witness outside the
state who resides closest to the county in which the proceedings
are pending are to be paid by the decedent’s estate. The same is
true of the costs of the stenographer, one copy of the transcripts
for the court and any guardian ad litem. All other costs, including
costs of examinations conducted after objections are filed and costs
of document discovery, are governed by CPLR Article 31. See
SCPA § 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.
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PROBATE PROCEEDINGS
§ 3.13
● New York Practice Guide: Probate and Estate Administration § 8.03.
● LexisNexis AnswerGuide New York Civil Litigation § 6.01
et seq. (discovery).
§ 3.13 Proving Lost or Destroyed Will
In order to admit a lost will to probate the proponent must prove
the 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 executed
Will, a draft of the Will, or testimony of at least two credible
witnesses regarding the contents.
See SCPA § 1407.
A witness’ testimony as to the provisions of the Will must be
based upon the witness’ own reading of the Will and cannot be
based upon statements made by the decedent to the witness
regarding the contents of the Will. A decedent’s declaration as to
the contents of the Will are inadmissible in New York. See In re
Yanover, 16 Misc. 2d 128, 182 N.Y.S.2d 961 (Sur. Ct. Nassau
County 1959) (refusing to admit lost Will based on decedent’s
declarations of contents).
Strategic Point: Retention of the original Will by the
attorney-draftsman will usually overcome the presumption
that a lost Will was revoked by the testator.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 41.03, 41.12,
41.13.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1407.01 et seq.
● New York Practice Guide: Probate and Estate Administration § 8.08.
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§ 3.14 Proving Nuncupative or Holographic Will
In addition to the usual proof required that the testator was
competent to make a Will and under no restraint, the following
additional proofs must be offered in order to probate a nuncupative
Will or a holographic Will:
1. Proof of the eligibility of the testator to make a nuncupative
or holographic Will and the non-expiration of such Will.
EPTL § 3-2.2 requires that the testator be either a member
of the armed forces, accompanying an armed force during
a time of armed conflict or a mariner at sea. See SCPA
§ 1404(3).
2. If the Will is nuncupative, proof by at least two witnesses
of both the execution and provisions of the Will. See SCPA
§ 1404(3).
3. If the Will is holographic, proof that the decedent wrote the
Will with testamentary intent and proof of the testator’s
handwriting. See SCPA § 1404(3).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 41.03, 41.10,
41.13, 42.05.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶ 1404.06.
● New York Practice Guide: Probate and Estate Administration § 8.06.
● Bender’s Forms for the Civil Practice Form No. SCPA
1405:5 (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 a
Will or of any part thereof:
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1. A party must have a pecuniary interest in the real or personal
property of the decedent;
2. Such interest must be one that would be adversely affected
by the admission of the Will to probate; and
3. Unless good cause is shown, such interest cannot be a
financial interest solely in fiduciary commissions.
See SCPA § 1410.
Exception: Even if a legatee has no standing to object to
a Will due to a lack of pecuniary interest, he or she can
nevertheless object to the qualification of the nominated
fiduciary. See In re Judson, N.Y.L.J., Nov. 1, 1995, p. 32
(Sur. Ct. New York County) (allowing parties to object
to qualification of preliminary executor despite lack of
standing to file objections to probate).
An in terrorem clause cannot deprive a person of standing to
contest 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 “no
contest” nor a “forfeiture” clause may under any circumstances
deny to a distributee “standing” to contest probate of the Will under
SCPA § 1410). However, if unsuccessful, the contestant may
forfeit 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 filed
on or before the return date or on a subsequent day as directed
by the court.
If a request is made to examine the witnesses pursuant to SCPA
§ 1404, objections must be filed within 10 days after the completion of such examination or such later date as may be agreed to
by the parties or fixed by the court. See SCPA § 1410 and 22
NYCRR § 207.26.
Unless the court makes a special order, late objections may be
accepted only if accompanied by a stipulation of all parties to
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extend the time to file objections. See 22 NYCRR § 207.36. In
such 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.2d
689 (2d Dep’t 1978) (vacating default after reviewing all relevant
factors); 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 objections
regarding the genuineness, validity, and due execution of the Will.
Any questions regarding the meaning of the Will or seeking a
correction of the Will cannot be determined until after the Will
is admitted to probate. See In re Devine, 41 Misc. 2d 211, 244
N.Y.S.2d 934 (Sur. Ct. New York County 1963) (holding that the
meaning of a Will and its interpretation and correction must wait
until after Will is admitted to probate). Common objections include
allegations of improper execution, fraud, duress, undue influence,
lack of testamentary capacity, forgery and revocation.
The following allegations are improper in a proceeding to
probate 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 (see
In 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 property
in a manner consistent with a valid and binding agreement
entered 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
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PROBATE PROCEEDINGS
§ 3.16[1]
4. That legacies are prohibited by statute (see In re Felter, 32
Misc. 2d 985, 224 N.Y.S.2d 966 (Sur. Ct. Kings County
1962)).
Objections should:
1. Include a verified allegation of how the objectant’s interest
is adversely affected; and
2. Describe the allegations in sufficient detail to give the court
and other parties notice of the objections asserted.
See SCPA §§ 103(39) and 302(2).
Strategic Point: Objections need not specifically deny the
allegations of the probate petition. Rather, the objections
may affirmatively allege why probate should be denied,
such as to lack of capacity, undue influence, or improper
execution 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:
● Warren’s Heaton on Surrogates’ Courts §§ 42.01–42.09.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1410.01 et seq.
● New York Practice Guide: Probate and Estate Administration § 11.01.
§ 3.16 Giving Notice and Serving Citation Upon
Filing of Objections
[1] Determining Who Must Receive Notice of Objections
and Citation
Whenever objections are filed, the party filing objections should
furnish a copy of the objections to each party who appeared in the
matter.
Within 30 days after the filing of objections, the proponent of
the Will must submit a citation to the court which must be served
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upon each party named in the Will whose interests would be
affected by the outcome of the proceeding and who has not
appeared in the proceeding or waived service of citation. If the
proponent fails to submit the citation to the court, it may be
submitted 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 been
served may appear personally on the return date or by filing a notice
of appearance. Any party failing to appear will not be entitled to
further notice and any determinations or settlements will be binding
on 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, hearing
or conference on a specified return date; and
3. The consequences of failing to appear.
See SCPA § 1411(1).
[3] Serving Citation
The citation must be served in accordance with the rules of SCPA
§§ 307 and 308 except that service may be made by mail upon
any person whether a resident or nonresident of New York. See
SCPA § 1411(4).
Proof of service by affidavit must be filed with the court at least
two days before the return date. See SCPA § 1411(4).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 42.03.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶ 1411.01.
● Weinstein, Korn & Miller, New York Civil Practice: CPLR
Ch. 3101.
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PROBATE PROCEEDINGS
§ 3.17[2]
● New York Practice Guide: Probate and Estate Administration § 11.02.
● LexisNexis AnswerGuide New York Civil Litigation §§ 6.01
et seq. (discovery), 8.01 et seq.
● 22 NYCRR §§ 207.23, 207.27, 207.28, and CPLR Article
31 (regarding pretrial procedures including pretrial conferences, examination of witnesses, discovery, document production, bill of particulars, interrogatories, and letters
rogatory).
§ 3.17 Obtaining Decree
[1] Meeting Prerequisites for Issuance of Decree
Before a Will may be admitted to probate, the court must first
be satisfied with the genuineness and validity of the Will. See
SCPA § 1408(1). Even if all parties consent to probate, the court
must 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 satisfied
that instrument offered for probate was duly executed).
The court must issue a decree admitting the Will to probate when
it is satisfied that:
1. The Will is genuine;
2. The Will was validly executed pursuant to the provisions
of 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 at
the 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 decree
should include the following:
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1. A statement that the Will has been filed with a petition for
its probate;
2. A statement confirming that jurisdiction has been obtained
over 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 without
objection;
4. A statement that the Surrogate is satisfied that the Will is
genuine and was duly executed and that the testator was
competent to make a Will and not under any restraint;
5. A direction for the issuance of letters testamentary to the
executors named in the Will upon their qualification and,
if relevant, letters of trusteeship; and
6. A revocation of any prior letters of administration, preliminary letters testamentary, or letters of administration.
SCPA § 1413.
If there was a Will contest, the decree should also include recitals
of the filing of objections, the trial and the verdict or decision, or,
if there was a settlement, the terms of the settlement. The decree
may also include provisions for the payment of costs.
The court may strike from the Will non-dispositive and libelous
or objectionable language. In such a case, the Will is preserved
intact 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 and
undue 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.
● New York Practice Guide: Probate and Estate Administration § 7.09.
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PROBATE PROCEEDINGS
§ 3.17[2]
● See Bender’s Forms for the Civil Practice Form No. SCPA
1411:5–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.
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PART E: OBTAINING LETTERS
TESTAMENTARY
§ 3.18 Checklist for Obtaining Letters Testamentary
M Confirm that nominated executor is eligible to receive letters
testamentary. SCPA § 707. See § 3.19[1] below.
M File renunciation if nominated executor does not wish to
serve. SCPA § 1417. See § 3.19[3] below.
M Consider petitioning for preliminary letters if delay in
probate is expected. SCPA § 1412. See § 3.20 below.
Prepare and file separate petition for preliminary letters
at or after filing probate petition.
Mail notice of petition for preliminary letters to all
persons with right to letters testamentary.
Mail notice of appointment of preliminary executor to
all parties who have appeared.
M Obtain court approval before distributing estate assets to
beneficiaries in advance of Will being admitted to probate.
See § 3.20[5] below.
M Petition for letters of administration c.t.a. when no nominated executor is willing or able to serve. SCPA § 1418.
See § 3.21 below.
§ 3.19 Obtaining Letters Testamentary
[1] Determining When and to Whom Letters
Testamentary 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 Court
proceeding to establish a Will and in accordance with such
judgment; see SCPA § 1414(2);
3. If the person is entitled to letters upon a contingency, when
the person has appeared and shown that the contingency
has happened; see SCPA § 1414(3); or
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PROBATE PROCEEDINGS
§ 3.19[1]
4. If such person is named as an executor by someone other
than the testator pursuant to a power to appoint granted
under the Will, when such person appears and files an
acknowledged instrument designating him or her as executor 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 of
SCPA §§ 707 and 711; and
3. Qualifies pursuant to SCPA § 708.
See SCPA § 1414(1). The court does not have the authority to deny
letters to a person nominated under a Will who is otherwise eligible
and who qualifies. See In re Scheu, 29 A.D.2d 626, 285 N.Y.S.2d
380 (4th Dep’t 1967).
Strategic Point: If someone other than the nominated
executor petitions for probate of the Will, the person
entitled to letters testamentary must appear in the proceeding. This may be done by filing a petition for receipt of
letters or signing a waiver and consent form, and providing
other papers required for qualification such as an oath and
designation, bond, and waiver of commissions, if applicable. See SCPA § 1414(1).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 44.01.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1414.01, 1414.02, 1414.03.
● New York Practice Guide: Probate and Estate Administration §§ 13.01, 13.02.
● See Ch. 1 above and N.Y. Const. Art. 6, § 12(f) (concurrent
jurisdiction of Supreme Court).
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§ 3.19[2]
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[2] Obtaining Supplemental Letters
If, at the time a Will was admitted to probate, the nominated
executor was a minor or a non-domiciliary alien, and therefore
ineligible to act as executor, but such person subsequently reaches
the age of majority or becomes a citizen of the United States,
supplemental letters may issue to him or her upon the filing of a
petition reciting the change in circumstances. See SCPA § 1415.
There is no remedy upon subsequent cure for persons who are
ineligible to act as executor for reasons other than age or
citizenship.
The nominated executor must be eligible to act as an executor
under SCPA §§ 707 and 711 and must qualify pursuant to SCPA
§ 708.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 44.06.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1415.01, 1415.02, 1415.03.
[3] Renouncing or Failing to Qualify As Executor
A nominated executor may renounce his or her right to letters
testamentary by an acknowledged instrument filed in the court
having jurisdiction over the estate or by an oral renunciation made
in open court and accepted by the Surrogate. See SCPA § 1417(1)
and (4); Official Form P-10 (Renunciation of Nominated Executor
and/or Trustee). The effectiveness of a renunciation may not be
conditioned on subsequent events, such as the issuance of letters
to another named fiduciary.
Where someone other than the nominated executor petitions for
probate of the Will and such will is admitted to probate, but the
nominated executor fails to appear or qualify, any party interested
in the decedent’s estate may make an ex parte application to the
court for an order directing that the nominated executor be deemed
to have renounced his or her appointment as executor if the
nominated executor fails to qualify:
1. Within 15 days after the Will is admitted to probate;
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PROBATE PROCEEDINGS
§ 3.20[1]
2. Within 15 days after the filing of the instrument designating
him or her as executor pursuant to a power in the Will; or
3. Within 5 days after objections to the grant of letters have
been determined in his or her favor.
See SCPA § 1416(1) and (3). Such an order must be served
personally within the state upon the nominated executor or using
such alternative method of service as the court may prescribe. See
SCPA § 1416(2).
A renunciation effected by either affirmative action of the
nominated executor or by the nominated executor’s failure to
comply with an order issued pursuant to SCPA § 1416 may be
retracted by an acknowledged and filed instrument so long as letters
have not been issued to any other party, subject to the discretion
of the court. See SCPA §§ 1416(3) and 1417(2) and (4); see also
In re Kellogg, 214 N.Y. 460, 108 N.E. 844 (1915).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 44.02, 44.04,
44.05.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1416.01, 1416.02, 1416.03, 1417.01, 1417.02, 1417.03.
● New York Practice Guide: Probate and Estate Administration § 5.04.
● Bender’s Forms for the Civil Practice Form No. SCPA
1417:1 (Official Form P-10, Renunciation of Executor
Named in Will and Waiver of Citation).
§ 3.20 Obtaining Preliminary Letters Testamentary
[1] Determining If Preliminary Letters Testamentary May
Issue
Preliminary letters may issue, among other times, if a delay in
probate is expected and there is a need to attend promptly to the
decedent’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:
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1. After the filing of a petition for probate and the issuance
of process; or
2. In the discretion of the court, before the issuance of process
in the probate proceeding if circumstances warrant.
See SCPA § 1412(1).
Strategic Point: The probate petition need not be complete
if information remains unknown. The petitioner may submit a petition for preliminary letters and proposed order
for preliminary letters at the time a petition for probate is
submitted.
Once process has issued and a preliminary executor has qualified, the court must issue preliminary letters. See SCPA § 1412(5).
The court is given wide discretion, however, to limit the powers
of the preliminary executor, to require the filing of a bond, and
to revoke preliminary letters. See SCPA § 1412(3), (4) and (5).
Nevertheless, in extraordinary circumstances, the court may deny
a request for preliminary letters, such as where a bona fide issue
of undue influence, fraud, or other wrongdoing is raised. See In
re Weiss, N.Y.L.J., Dec. 19, 1997, p. 32 (Sur. Ct. Bronx County).
Preliminary letters are not available for an executor nominated
in a lost or destroyed will. See SCPA § 1412(1). Similarly,
preliminary letters are not available if there is no nominated
executor or where the Will is nuncupative. In such cases, an
interested party may apply for letters of temporary administration
pursuant to SCPA § 901.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 40.02.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1412.01, 1412.02, 1412.03.
● New York Practice Guide: Probate and Estate Administration § 9.01.
● 2d Rep. of the EPTL-SCPA Legislative Advisory Committee, Leg. Doc. (1993), No. 2, pp. 31–32.
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PROBATE PROCEEDINGS
§ 3.20[3]
● 2d Rep., Temp. Comm’n on Estates, Leg. Doc. (1963) No.
19, App. B, pp. 152–53.
[2] Determining Who May Petition for Preliminary
Letters Testamentary
Only an executor named in the Will offered for probate can
petition the court for preliminary letters testamentary. See SCPA
§ 1412(1). Any person with an equal right to letters (such as a
nominated co-executor) may join in the petition or, after preliminary letters have issued, may request that the letters be extended
to him or her. See SCPA § 1412(2)(a).
A person nominated in a later Will may, after he has filed a
petition for probate of such later Will and process has issued
thereon, file a cross-request for preliminary letters testamentary or
if preliminary letters have already issued, request the revocation
of the prior letters and the issuance of preliminary letters to him
or her instead. Priority will generally be given to the person named
in the later Will though the court has the discretion to determine
otherwise. 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, courts
are often reluctant to revoke preliminary letters in favor of an
executor named in a subsequently filed later Will.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 40.04, 40.05,
40.07, 40.08.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1412.03, 1412.04.
● New York Practice Guide: Probate and Estate Administration § 9.02.
[3] Preparing Petition for Preliminary Letters
A petition for preliminary letters testamentary should be made
using Official Form P-2 (Application for Preliminary Letters
Testamentary) and must include the following information:
1. Name of proposed preliminary executor;
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2. Name of person or persons with right to receive letters
testamentary;
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 assets
and liabilities;
7. Whether the applicant is required to file a bond pursuant
to the provisions of the Will; and
8. Oath and designation of an individual preliminary executor
or consent and designation of a corporate preliminary
executor.
Official Form P-2 (Application for Preliminary Letters
Testamentary).
PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administration § 9.06 (Official Form P-2, Application for Preliminary
Letters Testamentary).
● See Bender’s Forms for the Civil Practice Form No. SCPA
1412:1 (Official Form P-2, Application for Preliminary
Letters Testamentary).
[4] Meeting Other Requirements for Obtaining
Preliminary Letters
Notice of a petition for preliminary letters is required to be given,
either before or after the issuance of preliminary letters, to all
parties who have a right to letters testamentary, including a
nominated co-executor and an executor nominated under a later
Will filed with the court. See SCPA § 1412(1). Notice of a petition
for preliminary letters need not be given to any other interested
party. 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
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PROBATE PROCEEDINGS
§ 3.20[5]
testamentary is made contemporaneously with the probate
petition, notice and citation as to the probate proceeding
must still be made to those parties required to receive
notice or citation pursuant to SCPA §§ 1403 and 1409.
Notice of the actual appointment of a preliminary executor must
be given to all parties who have appeared in the proceeding within
10 days of appointment. See SCPA § 1412(3)(b).
As with any fiduciary, before preliminary letters may issue to
a named executor, he or she must qualify pursuant to the provisions
of SCPA §§ 707, 708, and 711. See SCPA § 1412(5).
The court has discretion to grant preliminary letters with or
without bond. If the Will requires that the nominated executor file
a bond, the preliminary executor must file a bond in such amount
as the Will requires or in such additional amount as directed by
the court. If the Will is silent or specifically dispenses with a bond,
the court nevertheless has discretion to direct that a bond be posted
in an amount it deems advisable. See SCPA § 1412(5).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 40.03, 40.07,
40.08, 40.09.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1412.02, 1412.03.
● New York Practice Guide: Probate and Estate Administration § 9.02.
● Bender’s Forms for the Civil Practice Form No. SCPA
1412:1.
[5] Understanding Powers and Duties of Preliminary
Executor
A preliminary executor is given all of the powers and authority
granted by EPTL § 11-1.1 to a fiduciary and is subject to all of
the duties and liability of an administrator. See SCPA § 1412(3)(a).
Preliminary letters testamentary give the nominated executor the
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power to do those urgent tasks necessary to protect the assets of
the 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 paying
or satisfying a legacy or distributive share but may allow a devisee
or legatee to take possession of specifically devised property. See
SCPA § 1412(3). If circumstances warrant, the preliminary executor may petition the court to distribute certain assets. See In re
Robinson, N.Y.L.J., Feb. 6, 1997, p. 33 (Sur. Ct. Suffolk County)
(allowing preliminary executor to make small distribution to
surviving spouse based on dire needs of spouse, size of the estate
and amount that would pass to spouse whether or not Will was
probated).
The preliminary executor’s powers may be limited either by the
provisions of the decedent’s Will or by the court through the order
directing the issuance of preliminary letters. See SCPA § 1412(3)
and (4).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 40.10, 40.11,
40.12.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1412.05.
● New York Practice Guide: Probate and Estate Administration § 9.03.
● 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 preliminary letters testamentary. However, the court may direct that letters
continue until the termination of any appeal. See SCPA §§ 1412(6)
and 1413.
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PROBATE PROCEEDINGS
§ 3.20[7]
The court may revoke preliminary letters at any time prior to
a final determination in a probate proceeding, in the following
instances:
1. The preliminary executor is unreasonably delaying the
probate proceeding;
2. For any cause that would justify the revocation of permanent
letters testamentary under SCPA § 719; or
3. For the best interest of the estate.
See SCPA § 1412(6). Preliminary letters have been revoked, for
instance, for the improper payment of excessive legal fees to a
preliminary co-executor (see In re Lippner, 135 Misc. 2d 34, 514
N.Y.S.2d 182 (Sur. Ct. Kings County 1987) (preliminary letters
revoked when court was advised of improper payment of excessive
legal 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 estate
by preliminary executor).
Strategic Point: If someone other than the preliminary
executor is appointed as the permanent fiduciary, he or she
should request an accounting of the preliminary executor.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 40.13, 40.15.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1413.01, 1413.02.
● New York Practice Guide: Probate and Estate Administration § 9.04.
[7] Obtaining Commissions for Preliminary Executor
A preliminary executor will be entitled to statutory commissions
as provided in SCPA § 2307(5)(b) if the Will is admitted to probate
and letters testamentary are issued to the preliminary executor. See
SCPA § 1412(7). If the Will is denied probate or preliminary
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letters are revoked for any other reason, the preliminary executor
will only be entitled to such compensation as the court deems
reasonable and in no event shall such compensation exceed a
statutory commission. See SCPA § 1412(7).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 40.17.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶ 1412.05.
● New York Practice Guide: Probate and Estate Administration § 9.05.
● See Ch. 20 below (statutory commissions).
§ 3.21 Obtaining Letters of Administration, c.t.a.
[1] Determining If Letters of Administration c.t.a. Are
Appropriate
If at any time there is no person named or designated as executor
pursuant to the provisions of the Will who is eligible and willing
to act as executor, any person who is entitled to petition for the
probate of the Will pursuant to SCPA § 1402 may petition the court
for letters of administration c.t.a. (cum testamento annexo, or “with
the Will annexed”). See SCPA § 1418(1).
[2] Determining Who May Receive Letters of
Administration, c.t.a.
Letters of administration, c.t.a. are issued in the following order
of priority, which the court has no discretion to alter:
1. To a sole beneficiary, to the fiduciary of a deceased sole
beneficiary, the guardian of a minor sole beneficiary, or the
guardian, committee, or conservator of an incompetent sole
beneficiary; see SCPA § 1418(1), (4) and (5);
2. To one or more residuary beneficiaries, the fiduciary of a
deceased residuary beneficiary, the guardian of a minor
residuary beneficiary, or the guardian, committee, or conservator of an incompetent residuary beneficiary, see SCPA
§ 1418(1), (4) and (5);
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PROBATE PROCEEDINGS
§ 3.21[2]
3. To one or more persons interested in the estate, the fiduciary
of any deceased person who had an interest in the estate,
the guardian of any minor person with an interest in the
estate, or the guardian, committee, or conservator of any
incompetent person with an interest in the estate; see SCPA
§ 1418(1) and (5);
4. Upon the acknowledged and filed consent of all beneficiaries who are themselves eligible to receive letters of administration with the Will annexed, to an eligible person, trust
company, or other corporation; see SCPA § 1418(6) and
(7);
5. To the public administrator or, if there is none for the
county, to the treasurer of the county; see SCPA § 1418(2);
6. To the petitioner (if not otherwise eligible with a higher
priority); 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. by
filing Official Form P-11 (Renunciation of Letters of Administration c.t.a. and Waiver of Process—Before Probate) or Official Form
CTA-3 (Renunciation of Letters of Administration c.t.a., Waiver
of Process and Consent to Dispense with Bond—After Probate).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 45.01, 45.02.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1418.04, 1418.05, 1418.06.
● New York Practice Guide: Probate and Estate Administration §§ 13.01–13.05.
● Bender’s Forms for the Civil Practice Form No. SCPA
1418:3 (Official Form P-11, Renunciation of Letters of
Administration c.t.a. Before Probate), Form No. SCPA
1418:4 (Official Form CTA-3, Renunciation of Letters of
Administration c.t.a. After Probate).
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● See Ch. 14 below.
[3] Preparing Petition
Application for letters of administration, c.t.a. may be made as
part of the petition for probate or after the Will is admitted to
probate by independent petition.
If the application is made prior to probate, it should be made
within the petition for probate using Official Form P-1 (Petition
for Probate). The application is made by checking the box at the
beginning of the form requesting that letters of administration, c.t.a.
be issued and by including a statement that the petitioner (or other
party to whom letters are requested to be issued) has a prior or
an equal right to letters. See Official Form P-1 (Petition for
Probate). A list of any persons with an equal or a prior right to
letters should be included along with a statement that such persons
have been cited, waived citation, appeared, or renounced their right
to act. See SCPA § 1419.
If the petition for letters of administration, c.t.a. is made after
the Will has been admitted to probate, Official Form CTA-1
(Petition for Letters of Administration c.t.a. After Probate) should
be used and should include the following information:
1. The name, citizenship, domicile, and interest of the
petitioner;
2. When the Will was admitted to probate and by what court;
3. To whom letters testamentary were issued and whether such
person died, resigned, or was removed;
4. The names and addresses of all parties having a right to
letters of administration, c.t.a.;
5. The names and addresses of all beneficiaries named in the
Will;
6. A showing of the need for the appointment of an administrator, c.t.a.; and
7. A request for dispensing with the need for a bond, if
appropriate.
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PROBATE PROCEEDINGS
§ 3.21[4]
PRACTICE RESOURCES:
● New York Practice Guide: Probate and Estate Administration § 13.07.
● See Bender’s Forms for the Civil Practice Form No. SCPA
1402:1 (Official Form P-1, Petition for Probate of Will),
Form No. SCPA 1418:1 (Official Form CTA-1, Petition for
Letters of Administration c.t.a. After Probate).
[4] Serving Citation
The petitioner must serve every person who has an equal or
higher priority right to letters of administration with the Will
annexed and who has not renounced such right. The court has
discretion to dispense with service on persons who are not New
York 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—After
Probate); P-11 (Renunciation of Letters of Administration c.t.a. and
Waiver of Process—Before Probate).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 45.01, 45.02.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1418.01, 1418.02, 1418.03, 1419.01, 1419.02, 1419.03,
1419.04.
● New York Practice Guide: Probate and Estate Administration § 13.08.
● Bender’s Forms for the Civil Practice Form No. SCPA
1402:1, Form No. SCPA 1418:1, Form No. SCPA 1418:2,
Form No. SCPA 1418:3 (Official Form P-11, Renunciation
of Letters of Administration c.t.a. Before Probate), Form
No. SCPA 1418:4 (Official Form CTA-3, Renunciation of
Letters 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.courts.state.ny.us/forms.surrogates/pdfs/fouth_checklists.pdf.
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[5] Determining If Court May Refuse to Issue Letters of
Administration, c.t.a.
A party may not petition for letters of administration, c.t.a.
without first petitioning the court for removal of any existing
fiduciary. 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. if
the distribution of the estate is possible pursuant to the provisions
of the SCPA, such as through the utilization of small estate
administration (SCPA Article 13), or where the administration of
the estate is nearing an end and the fiduciary of a deceased executor
can be granted sufficient power to close out the estate (SCPA
§ 2207(7)). See SCPA § 1418(8).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 45.01.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1418.02, 1418.06.
● New York Practice Guide: Probate and Estate Administration § 13.02.
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PROBATE PROCEEDINGS
§ 3.23
PART F: INTERPRETING WILL PROVISIONS
THROUGH CONSTRUCTION PROCEEDINGS
§ 3.22 Checklist for Interpreting Will Provisions
Through Construction Proceeding
M Consider requesting construction of Will that contains
ambiguity which necessitates clarification. SCPA § 1420.
See § 3.24 below.
M Initiate construction proceeding by filing petition and giving
notice in the following situations: See § 3.25 below.
At any time after will admitted to probate, on behalf
of 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 to
Construe Will
A construction proceeding is a proceeding involving the construction, validity, or effect of any provision of a Will. See SCPA
§ 1420. It may involve an interpretation of ambiguous or confusing
terms used by the testator or the legal effect of such terms.
SCPA § 1420 supplements the general jurisdiction of the Surrogate’s Court over matters relating to the estates and affairs of
decedents by providing an independent proceeding for the construction of a Will. However, the construction of a Will need not be
a separately initiated proceeding. The court has the power to
construe the provisions of a Will whenever necessary, whether or
not 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 though
not originally requested).
Strategic Point: A practitioner may also use the procedural provisions of SCPA § 1420 as a guide in a miscellaneous proceeding for the reformation of a Will, which
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differs from a construction proceeding in that it seeks to
add or change provisions of the Will, generally for tax
reasons.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 187.01–187.05.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1420.01, 1420.05.
● New York Practice Guide: Probate and Estate Administration § 24.01.
§ 3.24 Determining If Construction May Be Made
A construction may be made at any time during the administration of an estate or after settlement of the fiduciary’s account so
long 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 its
natural and common sense; see In re Daly, N.Y.L.J., July
1, 1997, p. 35. (Sur. Ct. Richmond County); and
3. There must be a present necessity for construction; see In
re Lord, 38 Misc. 2d 7, 237 N.Y.S.2d 356 (Sur. Ct. Westchester County 1962).
The Surrogate may refuse to entertain an application for a construction proceeding if the proceeding is unnecessary or not timely. See
SCPA § 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 proceeding
will not result in the forfeiture of a benefit under the Will.
See EPTL § 3-3.5(b)(3)(E).
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PROBATE PROCEEDINGS
§ 3.25[1]
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 187.05.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1420.01, 1420.05.
● New York Practice Guide: Probate and Estate Administration §§ 24.01, 24.03.
§ 3.25 Bringing Contruction Proceeding
[1] Initiating Construction Proceeding
A construction proceeding may be initiated in the court where
the Will was probated in one of the following manners:
1. At any time, by the petition of a fiduciary named in the
Will or other interested person showing the interest of the
petitioner, the names and addresses of other interested
parties, the part of the Will at issue, and the reason why
a construction is necessary; see SCPA § 1420(1);
2. Within a proceeding to judicially settle an account, by any
party’s presentation of a question as to the account that
requires the construction of any part of the Will, whether
or not an express request for construction is made in the
pleadings; see SCPA § 1420(2); or
3. Within a probate proceeding, by the request of any party
made either in the probate petition or in an answer to the
petition; see SCPA § 1420(3).
Normally, a Will cannot be construed until it has been admitted
to probate. However, SCPA § 1420(3) permits the court to construe the provisions of a Will within the probate proceeding where
appropriate, such as to determine whether conduct would be in
violation 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 to
admission of Will to probate, court construed provisions of in
terrorem clause to be inapplicable to charitable residuary
beneficiaries).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 187.05.
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● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1420.02, 1420.03, 1420.04.
● New York Practice Guide: Probate and Estate Administration § 24.03.
[2] Giving Notice
In a construction proceeding initiated by petition, a citation must
issue to all persons interested in the question to be presented. See
SCPA § 1420(1).
If a construction arises in an accounting proceeding, no supplemental citation or notice of any kind is given to anyone previously
cited in the accounting proceeding. However, any interested party
not previously cited must receive a citation. All parties are bound
irrespective of their appearance in the accounting proceeding or
knowledge 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 County
1976) (denying distributee’s motion to vacate executor’s accounting decree).
In a probate proceeding in which a request is made to construe
a portion of the Will, a citation must issue to all persons interested
in the determination who have not yet appeared. Also, notice must
be given to those who have already appeared in such manner as
the court shall direct. See SCPA § 1420(3).
The provisions of SCPA § 315 regarding virtual representation
apply to a construction proceeding. See SCPA § 1420(5).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 187.05.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1420.02, 1420.03, 1420.04.
● New York Practice Guide: Probate and Estate Administration § 24.03.
● See Ch. 2 above (pleadings, process and virtual
representation).
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PROBATE PROCEEDINGS
§ 3.25[3]
[3] Determining Choice of Law
A Will construction is generally governed by the law of the
decedent’s domicile, except regarding the construction of provisions governing real property and powers of appointment. See
EPTL § 3-5.1(b)(2). In the case of real property, the law of the
situs of the real property controls. See EPTL § 3-5.1(b)(1). The
applicable choice of law in a proceeding involving the construction
of a power of appointment is governed by EPTL § 3-5.1(g) and
depends on the type of power of appointment and in what manner
it was created and exercised.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 187.05.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶ 1420.01.
● New York Practice Guide: Probate and Estate Administration § 24.04.
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PART G: DETERMINING VALIDITY OF
ELECTION BY SURVIVING SPOUSE
§ 3.26 Checklist for Determining Validity of Election
by Surviving Spouse
M Determine if party can challenge surviving spouse’s exercise of right of election. SCPA § 1421. See § 3.28[1]
below.
M Prepare and file petition and serve citation on all interested
parties. See § 3.28[2] below.
M Confirm that court has jurisdiction over property not in
possession of fiduciary. See § 3.28[3] below.
§ 3.27 Considering Relationship Between Estates
Powers and Trusts Law and Surrogate’s Court
Procedure Act
EPTL § 5-1.1-A governs the statutory right of election provided
to a surviving spouse including provisions for calculating the
amount of the elective share, how a surviving spouse may exercise
the right of election and the waiver or release of the right of
election. SCPA § 1421 provides a procedural mechanism for any
interested party to challenge or establish the validity or effect of
an election made pursuant to EPTL § 5-1.1-A.
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts §§ 73.01.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶ 1421.01.
● See Rohan, New York Civil Practice: EPTL ¶¶ 5-1.1-A[1]
et seq. (in-depth discussion of statute).
● New York Practice Guide: Probate and Estate Administration § 31.13.
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PROBATE PROCEEDINGS
§ 3.28[2]
§ 3.28 Obtaining Court Determination of Validity of
Election
[1] Determining Who May Petition
Any interested party may seek a determination regarding the
validity or effect of an election by a surviving spouse to take the
spouse’s statutory share either by independent petition or within
a 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 exercise
of the right of election, including any person who would
be required to make a ratable contribution to the spouse’s
share.
See SCPA § 1421(4).
An electing spouse may choose to institute a proceeding under
SCPA § 1421 if the fiduciary of the estate does not accept the
exercise of the election. The electing spouse may also choose to
institute a proceeding if the election affects inter vivos transfers,
thus enabling the spouse to bring the transferees before the court
as promptly as possible.
Strategic Point: If an electing spouse does not submit a
petition, a fiduciary should consider filing a petition under
SCPA § 1421 to ensure insulation from personal liability
should the fiduciary’s decision to accept the claim of the
electing spouse be proven erroneous
[2] Preparing Petition and Giving Notice
Any petition for a determination under SCPA § 1421 must be
filed in the court in which the Will was probated and must include
the following information:
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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 have
determined.
See SCPA § 1421(1).
Strategic Point: In order to expedite the proceeding, if
the petition is brought by the electing spouse and the other
interested parties consent to the election, either the petition
should mention the consent of the parties or the consenting
parties should be requested to join as petitioners.
Citation must issue to all interested parties and should specifically state every form of relief requested. See SCPA § 1421(2).
[3] Obtaining Jurisdiction over Property Not in Possession
of Fiduciary
Because a spousal election made pursuant to EPTL § 5-1.1-A
may affect property not held by the estate fiduciary, SCPA
§ 1421(5) gives the Surrogate power to determine the liability of
any party with an interest in the property. This includes the power
to fix the pro rata share of the elective share that must be paid
by any person holding property that is a testamentary substitute
under EPTL § 5-1.1-A(b). See SCPA § 1421(5). However, the
court must have in personam jurisdiction over a nondomiciliary
holding property outside of New York in order to recapture the
property. 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.2d
146, 570 N.Y.S.2d 385 (3d Dep’t 1991).
PRACTICE RESOURCES:
● Warren’s Heaton on Surrogates’ Courts § 73.05.
● Cox, Arenson & Medina, New York Civil Practice: SCPA
¶¶ 1421.02, 1421.03, 1421.04, 1421.05, 1421.06.
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PROBATE PROCEEDINGS
§ 3.28[3]
● New York Practice Guide: Probate and Estate Administration § 31.13.
● 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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