Surrogate’s Court is the Court responsible for matters involving estates, Probate proceedings, Administration proceedings, Guardianships, trusts, and certain related matters. Each county in New York State maintains its own Surrogate’s Court and follows procedures established by the Surrogate’s Court Procedure Act (SCPA), Estates, Powers and Trusts Law (EPTL), and applicable Court rules.
The Estates, Powers and Trusts Law (EPTL) is one of the primary bodies of law governing estates, trusts, fiduciaries, beneficiaries, and inheritance rights in New York State.
The EPTL contains many of the substantive laws relating to Probate, Administration, wrongful death actions, trusts, fiduciary duties, and the distribution of estate assets.
For example, EPTL § 5-4.6 addresses certain procedures involving the settlement of wrongful death claims.
The Surrogate’s Court Procedure Act (SCPA) is the body of law governing procedures in New York Surrogate’s Courts.
While the EPTL generally addresses substantive rights and obligations, the SCPA establishes many of the procedures followed by the Surrogate’s Court, including Probate proceedings, Administration proceedings, Guardianships, Accountings, Citations, fiduciary appointments, and related matters.
For example, SCPA § 2307 governs commissions payable to Executors and Administrators for services rendered on behalf of an estate.
Probate is the Court process used when a person dies leaving a valid Last Will & Testament. During a Probate proceeding, the Surrogate’s Court determines whether the Will is valid and appoints the nominated Executor.
Administration is the Court process used when a person dies without a valid Last Will & Testament. Because there is no Will naming an Executor, the Court appoints an Administrator to collect, manage, and distribute estate assets pursuant to New York law.
Simply stated:
Probate = There is a Will
Administration = There is no Will
Both Executors and Administrators are fiduciaries responsible for collecting assets, paying valid debts, filing tax returns when necessary, and distributing estate assets.
The primary difference is how they are appointed.
An Executor is nominated by the decedent in a Last Will & Testament and receives authority through Letters Testamentary.
An Administrator is appointed by the Court when no valid Will exists and receives authority through Letters of Administration.
A fiduciary is a person appointed to act on behalf of another person or an estate. Executors, Administrators, Trustees, and Guardians are all fiduciaries.
Fiduciaries are required to act honestly, prudently, and in the best interests of the estate or person they represent.
Letters Testamentary are Court-issued documents bearing the Seal of the Surrogate’s Court. They authorize an Executor to collect, manage, and distribute estate assets pursuant to the terms of a Last Will & Testament.
Banks, brokerage firms, insurance companies, and other institutions frequently require certified Letters Testamentary before releasing estate assets.
Limited Letters of Administration are Court-issued documents authorizing an Administrator to perform only specific tasks approved by the Court.
They are commonly issued when a lawsuit must be commenced or continued on behalf of a deceased individual and may restrict the fiduciary’s authority solely to the prosecution of litigation.
A Death Compromise Proceeding is a Surrogate’s Court proceeding seeking approval of the settlement of certain claims arising from a person’s death.
The proceeding typically requests Court approval of the settlement, attorney fees, disbursements, fiduciary commissions, and the proposed distribution of settlement proceeds.
EPTL § 5-4.6 permits an attorney to seek approval in the originating Court to collect settlement proceeds arising from wrongful death and related claims.
Depending upon the circumstances, this procedure may allow litigation counsel to collect settlement funds and receive approval of legal fees and disbursements before the Surrogate’s Court addresses final distribution issues.
A Petition to Lift Restrictions is a proceeding used in certain counties to remove restrictions previously placed upon Letters of Administration.
If granted, the amended Letters may authorize the fiduciary to collect and distribute settlement proceeds without the need for a separate compromise proceeding.
Availability varies by county.
An Amended Petition requests modification of previously issued Letters or prior Court relief.
These proceedings are often used when additional authority is required after the original appointment of a fiduciary.
Kinship refers to the legal determination of family relationships.
Kinship issues commonly arise when family structures involve multiple marriages, multiple relationships, marital and non-marital children, unknown heirs, predeceased distributees, questions of paternity, or missing family members.
A Waiver and Consent is a document signed by an interested party acknowledging a proceeding and consenting to the requested relief.
Obtaining Waivers and Consents often simplifies proceedings and may eliminate the need for service of a Citation.
In New York, a Guardian of the Property is generally required when a minor child inherits or receives assets totaling $10,000 or more. These assets may arise through an inheritance, life insurance proceeds, settlement proceeds, wrongful death recoveries, personal injury recoveries, or other sources.
The Court will appoint a Guardian of the Property to manage and protect those assets on behalf of the minor child. The appointed Guardian is often a parent or other close family member. In some circumstances, another trusted individual may be appointed with the consent of the parents and approval of the Court.
The Court’s primary concern is protecting the minor’s assets until the child reaches adulthood. Depending upon the circumstances, funds may be deposited into a Court-restricted, interest-bearing bank account, invested pursuant to Court approval, or placed into a structured settlement designed to provide future distributions to the child, often beginning at age 18 or later.
Before a Guardian of the Property may be appointed, the proposed Guardian must be approved by the Court. The appointment process typically requires the proposed Guardian to undergo a background investigation, including clearance through the New York Statewide Central Register of Child Abuse and Maltreatment. The proposed Guardian must also provide a detailed residential history, often covering approximately twenty-eight years, as well as information concerning other adults residing in the household.
In addition, the Court carefully reviews whether the proposed Guardian has any history involving child abuse, domestic violence, financial misconduct, theft-related offenses, fraud, identity theft, burglary, or other circumstances that could affect the safety of the child or the protection of the child’s assets. Individuals with criminal histories involving dishonesty, financial crimes, abuse, neglect, or violence are unlikely to be approved by the Court, particularly where the appointment would place the minor’s assets under that individual’s control.
Because Guardianship proceedings involve both financial and personal considerations, the Court takes these appointments very seriously and carefully evaluates whether the proposed Guardian is suitable to serve in the best interests of the child.
Yes. Executors and Administrators are generally entitled to commissions pursuant to SCPA § 2307.
As of this writing, commissions are calculated as follows:
These commissions are based upon estate assets received and distributed during the administration of the estate.
Not always.
Surrogate’s Court Solutions, LLC can assist only with uncontested matters where all interested parties are in agreement and no legal dispute exists requiring legal representation.
If disputes arise concerning a Last Will & Testament, fiduciary appointments, kinship, distributions, Accountings, Guardianships, settlement allocations, or other contested issues, qualified legal counsel should be consulted immediately.
Every matter is different.
The time required depends upon the complexity of the estate, the number of interested parties, Court processing times, the availability of supporting documentation, and whether any disputes arise.
Uncontested matters generally proceed more quickly than contested proceedings.
Costs vary depending upon the type of proceeding, the complexity of the matter, and the services required.
Surrogate’s Court Solutions, LLC strives to provide cost-effective procedural support and will gladly discuss your specific circumstances during an initial consultation.
Surrogate’s Court Solutions, LLC is not a law firm and does not provide legal advice, legal opinions, or legal representation. Services are limited to procedural support, document preparation, filing assistance, and other non-legal services permitted under applicable law.
The services of a paralegal are not a substitute for the advice, counsel, and representation of a licensed attorney. Clients are encouraged to consult with qualified legal counsel regarding their legal rights, obligations, and any legal issues that may arise during the course of a proceeding.
The information contained on this website is provided for educational and informational purposes only and should not be construed as legal advice. Viewing this website, communicating with Surrogate’s Court Solutions, LLC, or utilizing any services offered does not create an attorney-client relationship, nor should any information contained herein be relied upon as a substitute for competent legal counsel.
Surrogate’s Court Solutions, LLC can assist only in uncontested matters where all interested parties are in agreement and no legal dispute exists requiring legal representation. If a dispute arises concerning the validity of a Last Will & Testament, fiduciary appointments, kinship, distributions, Accountings, Guardianships, settlement allocations, or any other contested legal issue, qualified legal counsel should be consulted immediately.
Any references to attorneys, law firms, Courts, legal procedures, statutes, or legal concepts are provided solely for informational purposes. References to attorneys reflect independent professional relationships and do not constitute a recommendation, guarantee, endorsement, or the creation of an attorney-client relationship.
No guarantee is made regarding the outcome of any matter, proceeding, application, or Court filing. Prior results do not guarantee future outcomes.