Administration Proceedings: What Happens When A Person Dies Without A Will?
When an individual dies and does not have a will, there is another proceeding that can be brought into surrogate court called an administration proceeding. During an administration proceeding, a petitioner that is interested in the will petitions the court to become the named fiduciary or have letters of administration issued to them. If named the fiduciary, then they would ultimately be in charge of dispersing the estate’s assets pursuant to the bloodline, which is done in lieu of a will under New York statute.
The Actual Petition In A Probate Proceeding
The probate petition must satisfy the basic requirements of SCPA 304 and SCPA 1402. It must obviously state that the testator has died, as well as indicate the citizenship of the petitioner and testator. It must include the will and any codicils, the dates that those instruments were executed and the names of the attesting witnesses to the will or the codicil. It must state whether or not any other wills of the testator are on file with the court. In addition, it must list the names of any and all other interested parties and distributees that are entitled to be cited.
The actual probate petition must be verified and the nominated executor must designate a clerk of the surrogate’s court in the county in which the proceedings are brought for process. They must also sign an oath that they will faithfully execute and discharge their duties as the nominated executor. The petition must include the size of the estate, which determines the appropriate filing fee for the petition. That figure should include most probatable assets in New York that need to go through probate. The petition will ask for personal property and a separate designation for any real property that is part of the probate proceeding within the state of New York.
The probate petition should include the addresses of all of the necessary parties. If they cannot be ascertained, then an attorney must accompany the petition with an affidavit of due diligence indicating how they were trying to locate and identify those parties. Due diligence generally requires a thorough search of all sources likely to have information on the existence or whereabouts of those interested distributees. In lieu of actually serving process or citing both parties, the attorney can generally obtain a waiver of process from a party who does not object to the probate. A waiver of process is a document that’s signed before a notary and filed with the court, and it is used in place of a formal citation issued by the court on the interested party. If all necessary parties do not provide a waiver in consent, then they must be served.
The citation must include the name and the domicile of the decedent, the necessary parties and the return date, which is the date when the case will be before the court. The citation must also indicate the object of the proceeding, the type of relief that is being sought, the name of the petitioner’s attorney and any other information pertaining to known or unknown family members. This is a very important requirement; if a court does not get personal jurisdiction over all of the necessary parties, the probate will not be allowed to proceed and no legally bound decree would be enforceable.
The necessary parties are determined at the time of probate of the decedent’s will. If the necessary party is a disability, meaning that they are under the age of maturity or incapacitated, then the court will appoint a guardian ad litem to represent that person’s interest. The guardian who is appointed is usually an attorney who will stand in the shoes of the interested party to review the matter. Their job is to look into the proceeding and the validity of the will, and to prepare a report to the court that addresses whether or not they feel the will is legally valid and should be accepted for probate by the court. Ultimately, these are guidelines that are given to the court.
If the interested parties are within the state of New York, then the process that needs to be served on them must be done in person. If the person resides outside the state of New York, then they could receive notice of a citation via certified mail. Alternatively, the court may allow full service on certain individuals in an alternate matter, but that must be done via a court order. That means that the person would have to ask the court’s permission for a type of service other than those described above.
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