Kings County Surrogate’s Court now allows attorneys to verify petitions on behalf of their clients where the client is not in the county where the attorney has their office, but the Court still requires that the petitioner sign the petition.

Pursuant to CPLR § 3020(d)(3), “if the party … is not in the county where the attorney has his office . . . the verification may be made by such … attorney.”

Despite the provisions of CPLR § 3020(d)(3), Kings County’s Petition Requirements previously required the “Notarized signature of the PETITIONER” in all circumstances.

I recently filed a petition both signed and verified by me, because my client was not in the count where I have my office. The Miscellaneous Department advised me that my verification of the pleading was authorized, but my client was still required to sign the petition.

Most estate litigators in New York are well aware of the proceeding to compel production of a will pursuant to Surrogate’s Court Procedure Act (“SCPA”)  § 1401. However, there are other remedies available against a person withholding a last will and testament from a petitioner without good cause.

New York’s Penal Law § 190.30 makes unlawfully concealing a will a class E felony, which can land the concealer in prison for up to four years. Per Penal Law § 190.30: “A person is guilty of unlawfully concealing a will when, with intent to defraud, he conceals, secretes, suppresses, mutilates or destroys a will, codicil or other testamentary instrument.”

Continue Reading Using New York Penal Law to Compel Production of a Will

These days, my practice focuses almost exclusively on estate litigation, surrogate’s court practice, and adult guardianship. However, I used to do estate planning.

My office created a descent and distribution diagram to aide estate planning clients in visualizing the difference between per capita, per stirpes, and by representation.

Continue Reading My Office’s Descent and Distribution Diagram

The Westchester County Surrogate’s Court now permits reimbursement from the estate to counsel for executors and administrators for Federal Express charges incurred, a change to the court’s past practices, potentially setting off a broader trend reflecting technological changes in the courts and new communications customs resulting from Covid-19.

In Estate of Patt (2015-784/A), Surrogate Brandon R. Sall issued an Amended Decision dated February 16, 2021 allowing the law firm of Schupbach, Williams & Pavone, LLP to be reimbursed for $109.88 in Federal Express charges from the decedent’s estate.

The law firm had represented the administrator of the estate, who sought to judicially settle her account. An application was made by the law firm for reimbursement for fees and disbursements. Included in the firm’s request for disbursements were charges for FedEx in the amount of $109.88.

Surrogate Sall explained that “historically, this court has not permitted reimbursement of such charges to counsel, as it has considered Federal Express and the like to be a component of office overhead, which is not reimbursable.”

Indeed, attorneys cannot charge to the estate items of law office overhead, such as messenger services and postage, according to New York Estate Administration, 2020 Edition at § 13.02[b] on page 465.

Surrogate Sall reasoned that, however, “in today’s world, overnight mail service offers many advantages. It gives the sender the ability to track mailing and confirm delivery, while also giving attorneys the confidence to forego in-person court filing.”

Continue Reading Westchester County Surrogate’s Court Changes Position on Allowing Reimbursement for FedEx Charges

Retrieving an original copy of a death certificate in New York City usually isn’t a big challenge, but it can be if the client’s degree of kindred to the decedent is too remote, like a cousin.

In my practice, the issue often comes up when the client is a cousin and an alleged heir in a kinship proceeding in one of the five boroughs of NYC. As a cousin, the client may be an “entitled party“, but they are not an entitled party with automatic right to a death certificate in NYC.

The solution? The Vital Records Attorney Protocol has always made obtaining an original copy of a death certificate in NYC for my clients fairly seamless.

Continue Reading The Easy Way for Attorneys Representing the Decedent’s Cousins to Get a Death Certificate in New York City

The Kings County Surrogate’s Court prohibits petitioners from stating “any further relief requested” in the form JA-10 (1/2004) Petition for a Compulsory Accounting and Related Relief SCPA 2205.

The form JA-10, entitled “Petition for a Compulsory Accounting and Related Relief SCPA 2205 (emphasis added)” includes a provision on page 1 that reads: “[NOTE: Complete Paragraph 6 IF relief requested is in addition to a compulsory accounting.]”

Paragraph 6 gives the petitioner extra space to “[State any further relief requested]”.

However,  I recently submitted the form JA-1 petition in Kings County Surrogate’s Court, with further relief requested, but I was advised by the  Accounting Department that further relief cannot be requested and that portion of the form must be left blank in Kings County.

Probating a will which exercises a power of appointment may mean more work than usual before jurisdiction is marked complete.

Pursuant to Uniform Rule 207.19(d):

In a probate proceeding where the will purports to exercise a power of appointment, a copy of the instrument creating the power of appointment must be furnished, and the petition for probate shall list those named in said instrument who are adversely affected by the probate of such will. Jurisdiction shall be acquired over such persons in the same manner as over distributees.

Estate planners should probably mull over this rule and its consequences before drafting a will purporting to exercise a power of appointment.