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NEW YORK SURROGATE'S COURT PROCEDURE
SCP

Last update: 2011-11-14


  • Article 1. General 101 - 106
  • Article 2. Jurisdiction and Powers 201 - 212
  • Article 3. Proceedings, Pleadings and Process 301 - 316
  • Article 4. Appearance; Protection of Persons Under Disability; Counsel for Indigent Adults in Surrogate's Court Proceedings 401 - 407
  • Article 5. Trials and Hearings 501 - 510
  • Article 6. Orders and Decrees 601 - 607
  • Article 7. General Provisions Relating to Letters 701 - 725
  • Article 8. General Provisions Relating to Bonds 801 - 811
  • Article 9. Temporary Administration--absentees and Internees 901 - 911
  • Article 10. Intestate Administration 1001 - 1007
  • Article 11. Public Administrators of the Counties Within the City of New York 1101 - 1128
  • Article 12. Public Administrators in the Counties of Erie, Monroe, Nassau, Onondaga, Suffolk and Westchester and County Treasurers Appointed Administrators 1201 - 1219
  • Article 13. Settlement of Small Estates Without Court Administration 1301 - 1312
  • Article 14. Probate Proceedings; Construction of Wills; Right of Election 1401 - 1424
  • Article 15. Trusts and Trustees 1501 - 1509
  • Article 16. Foreign Estates 1601 - 1616
  • Article 17. Guardians and Custodians 1701 - 1727
  • Article 17-A. Guardians of Mentally Retarded and Developmentally Disabled Persons 1750 - 1761
  • Article 18. Claims; Payment of Debts and Funeral Expenses 1802 - 1814
  • Article 19. Disposition of Real Property 1901 - 1923
  • Article 20. Proceeding to Open Safe Deposit Box 2001 - 2003
  • Article 21. Miscellaneous Proceedings 2101 - 2115
  • Article 22. Accounting 2201 - 2227
  • Article 23. Costs, Allowances and Commissions 2301 - 2313
  • Article 24. Court Fees 2401 - 2404
  • Article 25. Records and Recording 2501 - 2508
  • Article 26. The Surrogate's Court and Its Officers 2601 - 2611
  • Article 27. Appeals 2701 - 2702
  • Article 28. Repeal; Savings Clause; Effective Date 2801 - 2805
  • Version 2011-11-14

Article 1
General

Section 101. Short title; how cited

This act shall be known as the surrogate's court procedure act and may be cited as "SCPA". A provision of this act may be cited by its number without being preceded either by the word "section" or the symbol "§". Reference to an article or section without reference to another law shall be deemed to refer to an article or section of this act.

Section 102. Application of CPLR and other laws

The CPLR and other laws applicable to practice and procedure apply in the surrogate's court except where other procedure is provided by this act.

Section 103. Definitions

When used in this act, unless otherwise required by the context, or unless a contrary intent is expressly declared in the provision to be construed, the words, phrases or clauses hereafter shall be construed as follows:

1. Acknowledged. Acknowledged or proved in the same manner as a deed is required to be acknowledged or proved and authenticated to be recorded in that county, except that when executed within the state, no certificate of the county clerk shall be required.

2. Administrator. Any person to whom letters of administration have been issued.

3. Administrator c. t. a. Any person to whom letters of administration with the will annexed have been issued.

4. Administrator d. b. n. Any person to whom letters of administration have been issued as a successor to an administrator.

5. Ancillary administrator. Any person to whom ancillary letters of administration have been issued.

6. Ancillary executor or administrator c. t. a. Any person to whom ancillary letters testamentary or ancillary letters of administration c. t. a. have been issued.

7. Ancillary guardian. Any person to whom ancillary letters of guardianship, whether of the person, property, or both, of an infant have been issued.

8. Beneficiary. Any person entitled to any part or all of an estate.

9. Bequest or legacy. A transfer of personal property by will.

9-a. Corporate trustee. Any trust company, any bank authorized to exercise fiduciary powers and any national bank having a principal, branch or trust office in this state and duly authorized to exercise fiduciary powers.

10. Court. The surrogate's court, including any judge or surrogate assigned, elected or appointed to serve as judge of the court.

11. Creditor. Any person having a claim against a decedent or an estate.

12. Devise. When used as a noun, a transfer of real property by will. When used as a verb, to transfer real property by will.

13. Devisee. Any person to whom real property is transferred by will.

14. Distributee. Any person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.

15. Domicile. A fixed, permanent and principal home to which a person wherever temporarily located always intends to return.

16. Domiciliary. A person whose domicile is within the state of New York.

17. Donee of a power during minority. Any person granted or deemed to have the power during minority to manage property vested in an infant.

18. Eligible to receive letters. Not disqualified on any of the grounds described in 707.

19. Estate. All of the property of a decedent, trust, absentee, internee or person for whom a guardian has been appointed as originally constituted, and as it from time to time exists during administration.

20. Executor. Any person to whom letters testamentary have been issued.

21. Fiduciary. An administrator, administrator c.t.a., administrator d.b.n., ancillary administrator, ancillary administrator c.t.a., ancillary executor, ancillary guardian, executor, guardian, preliminary executor, temporary administrator, testamentary trustee, to any of whom letters have been issued, and also the donee of a power during minority and a voluntary administrator and a public administrator acting as administrator or a public administrator or county treasurer to whom letters have been issued, and a lifetime trustee.

22. Funeral expense. Includes reasonable expense of a funeral, suitable church or other services as an integral part thereof, expense of interment or other disposition of the body, a burial lot and suitable monumental work thereon and a reasonable expenditure for perpetual care of a burial lot of the decedent.

23. Grantor. The creator of a lifetime trust.

24. Guardian. Any person to whom letters of guardianship have been issued by a court of this state, pursuant to this act, the family court act or article 81 of the mental hygiene law.

25. Incapacitated person. Any person who for any cause is incapable adequately to protect his or her rights, including a person for whom a guardian has been appointed pursuant to article 81 of the mental hygiene law.

26. Incompetent. Any person judicially declared incompetent to manage his affairs.

26-a. Individual trustee. Any trustee who is not a corporate trustee.

27. Infant. Any person under the age of eighteen years; provided, however, that for purposes of appointment of a guardian of an infant, the term infant also shall include a person who is under the age of twenty-one years who consents to the appointment of a guardian after the age of eighteen. It is further provided that such definition shall not be applicable to any provision relating to the New York Uniform Transfers to Minors Act, nor to section 1716 of this act.

28. Intestate. A person who dies without leaving a valid will. Where it is used with respect to particular property, a person who dies without effectively disposing of that property by will. When used as an adjective, to property not effectively disposed of by will.

29. Judicial settlement. A proceeding whereby the account of a fiduciary is settled and adjudicated by decree of the court.

30. Legal life tenant. Any person entitled for his life or for the life of another to the possession and use of real or personal property.

31. Lifetime trust. An express trust, including all amendments thereto, created during the grantor's lifetime other than a trust for the benefit of creditors, a resulting or constructive trust, a business trust where certificates of beneficial interest are issued to the beneficiary, an investment trust, voting trust, a security instrument such as a deed of trust and a mortgage, a trust created by the judgment or decree of a court, a liquidation or reorganization trust, a trust for the sole purpose of paying dividends, interest, interest coupons, salaries, wages, pensions or profits, instruments wherein persons are mere nominees for others, or a trust created in deposits in any banking institution or savings and loan institution.

32. Lifetime trustee. A trustee acting under a lifetime trust.

33. Legatee. Any person designated to receive a transfer by will of personal property.

34. Letters. Includes letters of administration, letters of administration c. t. a., letters of administration d. b. n., limited letters of administration, ancillary letters of administration, ancillary letters of guardianship, ancillary letters testamentary, letters of guardianship, letters of temporary administration, letters testamentary, preliminary letters testamentary and letters of trusteeship. A testamentary trustee who has qualified without the issuance of letters shall be deemed for the purposes of this act to have received letters of trusteeship.

35. Mailing or mail. A direction to mail or for mailing of process, notice or other paper requires deposit of such process, notice or other paper enclosed in a sealed postpaid envelope, directed to the person to be served or notified, in any post office or other depositary under the exclusive care and custody of the United States Postal Service.

35-a. Mailing by express mail. Mailing in conformity with the requirements of the United States Postal Service respecting express mail.

36. Mailing by registered or certified mail. A direction for mailing of process, notice or other paper by registered or certified mail requires mailing in conformity with the requirements of the United States Postal Service respecting registered or certified mail, as the case may be.

37. Mailing by registered or certified mail; return receipt requested. Mailing in conformity with the requirements of the United States Postal Service respecting registered mail with return receipt requested or certified mail with return receipt requested, as the case may be.

37-a. Mailing by special mail service. A direction for mailing of process, notice or other paper by special mail service requires mailing by express mail or use of any designated delivery service within the meaning of §7502(f)(2) of the United States Internal Revenue Code of 1986, as from time to time amended.

38. May. When used in this act, in relation to an act to be performed by the court, means in the discretion of the court.

39. Person interested. Any person entitled or allegedly entitled to share as beneficiary in the estate or the trustee in bankruptcy or receiver of such person. A creditor shall not be deemed a person interested. Where this act provides that a "person interested" may apply for relief, a verified allegation of an interest in fact, suffices for the purpose of the application, although the interest may be disputed, unless or until the fact of interest has been judicially determined and no appeal is pending therefrom.

40. Person under disability. Any person who is (a) an infant, (b) an incompetent, (c) an incapacitated person, (d) unknown or whose whereabouts are unknown or (e) confined as a prisoner who fails to appear under circumstances which the court finds are due to confinement in a penal institution.

40-a. Petition. A verified application in the manner provided in CPLR 3020, requesting action upon a matter or relief provided for in the estates, powers and trusts law or this act.

41. Preliminary executor. Any person to whom preliminary letters testamentary have been issued.

42. Presumptive distributee. Any person who would be a distributee as defined in this act, if the person alleged to be deceased, absentee or internee were dead.

43. Process. Citation, order to show cause, subpoena and any other mandate of the surrogate's court by which jurisdiction is obtained of a party.

44. Property. Anything that may be the subject of ownership and is real or personal property, or is a chose in action.

45. Respondent. Every party to a proceeding except a petitioner.

46. Safe deposit company. Any corporation authorized under the banking law to let out receptacles for safe deposit of personal property.

47. Temporary administrator. Any person to whom letters of temporary administration have been issued.

48. Testamentary trust. A trust created by will.

49. Testamentary trustee. Any person to whom letters of trusteeship have been issued.

50. Trust. A testamentary trust or a lifetime trust.

51. Upon the return of process. The time and place for the return of any process and any adjournment thereof, and implies that due proof has been made that the court has jurisdiction over all parties who appeared, have waived or been duly served.

52. Will. A last will, including all the codicils thereto.

Section 104. Application of act; confirmation of previous acts

Each provision of this act relating to the jurisdiction of the surrogate's court over lifetime trusts or to take the proof of a will and to grant letters or appoint trustees or regulating the mode of procedure in any manner concerning a lifetime trust or an estate of a decedent applies unless otherwise expressly declared therein, whether the estate, if a lifetime trust, was created, or the will was made or the decedent died before or after this act takes effect. All acts hitherto of surrogates and officers acting as such by completing and certifying in their own names any uncertified wills, and by signing and certifying in their own names any uncertified records of wills, and of other proofs and examinations taken in the proceedings of probate thereof before their predecessors in office, are hereby confirmed and declared to be valid and in full compliance with the pre-existing statutory requirements.

Section 105. Rules for surrogates' courts

The court in each county may make such rules for the conduct of business in its court as it may deem necessary, not inconsistent with statute, and subject to the rules and orders of the administrative board and appellate division applicable thereto.

Section 106. Appendix of official forms

The state administrator of the state of New York shall have the power to adopt, amend and rescind an appendix of forms. Forms adopted pursuant to this section shall be sufficient under the surrogate's court procedure act and shall be accepted for filing in all of the surrogate's courts. Any judge of the surrogate's court may provide forms other than the official forms for use in his county, provided, however, that the use of such forms shall not be required instead of the official forms.

Article 2
Jurisdiction and Powers

Section 201. General jurisdiction of the surrogate's court

1. The court has, is granted and shall continue to be vested with all the jurisdiction conferred upon it by the Constitution of the State of New York, and all other authority and jurisdiction now or hereafter conferred upon the court by any general or special statute or provision of law, including this act.

2. This and any grant of jurisdiction to the court shall be deemed an affirmative exercise of the legislative power under § 12 (e) of article VI of the Constitution and shall in all instances be deemed to include and confer upon the court full equity jurisdiction as to any action, proceeding or other matter over which jurisdiction is or may be conferred.

3. The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires.

Section 202. Enumerated proceedings not exclusive

The proceedings enumerated in this act shall not be deemed exclusive and the court is empowered in any proceeding, whether or not specifically provided for, to exercise any of the jurisdiction granted to it by this act or other provisions of law, notwithstanding that the jurisdiction sought to be exercised in the proceeding is or may be exercised in or incidental to a different proceeding.

Section 203. Jurisdiction of parties and subject matter

The court obtains jurisdiction in every case to make a decree or other determination by the existence of the jurisdictional facts prescribed by statute.

The jurisdiction of the court is exercised by the commencement of a proceeding in the court. All proceedings are special proceedings and are commenced by filing a petition. Personal jurisdiction of parties is obtained by service of process upon the parties or by submission to the jurisdiction of the court by waiver of issuance and service of process, appearance of an adult competent party in person or by attorney or by pleading.

Section 204. Presumption of jurisdiction

Where the jurisdiction of the court to make a decree or other determination is drawn in question collaterally, the jurisdiction is presumptively and in the absence of fraud or collusion, conclusively established by an allegation of the jurisdictional facts contained in a verified pleading. Jurisdiction of the parties is presumptively proved by a recital to that effect in the decree.

Section 205. Domiciliaries; jurisdiction and venue

1. The surrogate's court of any county has jurisdiction over the estate of a decedent who was a domiciliary of the state at the time of his death, disappearance or internment. The proper venue for proceedings relating to such estates is the county of the decedent's domicile at the time of his death, disappearance or internment.

2. A surrogate shall transfer any proceeding to the surrogate's court of the proper county either on his own motion or on the motion of any party.

3. Notwithstanding the foregoing provisions of this section, the surrogate's court of any county has jurisdiction over, and is a proper venue for, the proceedings of any decedent who was a domiciliary of the state at the time of his or her death and who died as a result of wounds or injury incurred as a result of the terrorist attacks on September eleventh, two thousand one.

Section 206. Non-domiciliaries; jurisdiction and venue

1. The surrogate's court of any county has jurisdiction over the estate of any non-domiciliary decedent who leaves property in the state, or a cause of action for wrongful death against a domiciliary of the state. The proper venue for proceedings relating to such estates is the county (a) where the non-domiciliary decedent left property, or (b) where personal property belonging to the non-domiciliary decedent has since his death, disappearance or internment come into and remains unadministered, or (c) of the domicile of the person against whom a non-domiciliary left a cause of action for wrongful death.

2. Where venue may lie in more than one county under the provisions of subdivision one, the court where a proceeding is first commenced with proper venue shall retain jurisdiction, and matters relating to the estate of the non-domiciliary decedent pending in the surrogate's courts of other counties shall be transferred to it.

3. A surrogate shall transfer any proceeding to the surrogate's court of the proper county either on his own motion or on the motion of any party.

Section 207. Lifetime trusts; jurisdiction and venue

1. The surrogate's court of any county has jurisdiction over the estate of any lifetime trust which has assets in the state, or of which the grantor was a domiciliary of the state at the time of the commencement of a proceeding concerning the trust, or of which a trustee then acting resides in the state or, if other than a natural person, has its principal office in the state. The proper venue for proceedings relating to such lifetime trusts is the county where (a) assets of the trust estate are located, or (b) the grantor was domiciled at the time of the commencement of a proceeding concerning the trust, or (c) a trustee then acting resides, or, if other than a natural person, has its principal office.

2. Where venue may lie in more than one county under the provisions of subdivision one, the court where a proceeding is first commenced with proper venue shall retain jurisdiction, and matters relating to the estate of the lifetime trust pending in the surrogate's courts of other counties shall be transferred to it.

3. A surrogate shall transfer any proceeding to the surrogate's court of the proper county either on his own motion or on the motion of any party.