The Role of the Attorney General in Surrogate’s Court

Lady justice

{Read in 4 Minutes}  As a Trusts and Estates attorney, I very often find myself involved in proceedings in the Surrogate’s Court. Whether it is an Estate proceeding related to the probate of a deceased person’s Will, handling a Petition for Letters of Administration, or an accounting proceeding, there are several parties who are interested in an Estate and may be entitled to a Citation to participate in the proceedings. When a party files their Petition with the Surrogate’s Court for relief, the client needs to list all of the parties who are interested in that proceeding. Very often, that will include the decedent’s next-of-kin, beneficiaries, creditors, or certain statutory parties like the Public Administrator. The New York State Attorney General’s office is another such statutory party. 

When might the Court require that you include the Attorney General as a statutory party? Well, it can come up in a variety of proceedings but most usually in probate or accounting proceedings.

Probate Proceeding

In a probate proceeding, the Petitioner needs to identify all of the deceased’s next-of-kin. In a situation where the deceased is not survived by any immediate relatives, the attorney for the Petitioner will need to give the Attorney General notice of the proceeding. Specifically, if the next-of-kin are first cousins or unknown to the petitioner, the Attorney General is entitled to notice and may participate in the 1404 examinations. The Assistant Attorney General assigned to the case may wish to ask questions and investigate the circumstances under which the decedent created the Will. Also, in a situation where the petitioner can identify all of the next-of-kin, the Attorney General may become involved if one of them challenges the Will. If there are charitable beneficiaries under the Will, the Attorney General’s office will come forward to represent the interests of the charitable beneficiaries.

Accounting Proceeding 

The Attorney General’s office may also be a party to an accounting proceeding specifically when an Executor or Administrator of an Estate is seeking court approval of their accounting. This is the process where the Executor or Administrator asks the Court to review all of their transactions, make a finding that they have not breached their fiduciary duty, and enter a decree releasing them from liability. 

The Attorney General is mainly involved in accounting proceedings in two types of situations:

1. If they are charitable residuary beneficiaries of the Estate, the Attorney General will be a necessary party and may participate in the proceeding. 

2. Where there are no close relatives or no known relatives, the State of New York may be the ultimate taker in default of the assets of the Estate. In that situation, the Attorney General participates to protect the state’s interest in the Estate.

When the Attorney General’s office is involved in an Estate proceeding, they can be like any other party. They have the ability to ask questions, to participate in trials before the Court, and also negotiate and try to settle the case. The Assistant Attorney Generals who work these cases have a long history of doing so, are very knowledgeable and can be a fantastic tool in helping to resolve a contested Estate.

For more information on this topic, please contact me.

Thomas Sciacca

 

Thomas Sciacca

www.sciaccalaw.com
Tom@SciaccaLaw.com
(212) 495-0317