{Read in 4 Minutes} As a Trusts and Estates attorney, I frequently represent nominated Executors in Wills who are offering those Wills to probate in the New York Surrogate’s Court. When submitting a Petition to the Surrogate’s Courts, the petitioner (almost always the nominated Executor) must provide a variety of information. One among those is the name and address of the class of next-of-kin who would be entitled to inherit if the person died without a Will. The reason the Court needs this is so that it can obtain jurisdiction over all of the necessary parties to the proceeding. Or, put another way, the Court can be sure that all interested parties to the proceeding have notice and the opportunity to be heard.
Once the Surrogate’s Court has the addresses of all those interested parties, it generally issues a Citation to those parties, giving them a time and date when they or their attorneys need to appear in Court and voice any opposition to the Will. Until the Court obtains jurisdiction, the proceeding — whether contested or uncontested — cannot proceed. Everything is at a standstill.
The petitioning party is responsible for serving the Citation on those interested parties. Generally, the petitioner will accomplish this by traditional service methods. However, sometimes the petitioner makes diligent attempts to accomplish service but can’t successfully notify the parties. For example, the petitioner has hired a process server to do personal service, and the process server has shown up at the recipient’s residence on multiple occasions. And they are never home to accept service, or they run away, or refuse to answer the door, etc. Perhaps they send it by certified mail and the person is not home when the post office attempts to deliver the envelope, so they receive a notice to get it at the post office … but the person never goes to the post office to pick it up, resulting in the postal service eventually returning it to the petitioner. What happens in these situations?
There are options. The petitioner can request the Court to serve in some alternate ways. Sometimes the Court will allow service by regular mail, or if the person’s whereabouts are unknown, the Court will sign an order allowing service of the Citation by publication. Yes, as in a newspaper, and yes, they still exist. If you are curious, open up the classified ads in a hard-copy newspaper, and you will see legal notices. You might find Surrogate’s Court Citations among those. The Surrogate’s Court is very helpful in processing such requests, and they generally will issue an order very quickly if they allow this.
Supposing the Surrogate’s Court allows the petitioner to serve one or more interested parties by publication, what happens next? The Order allowing publication will designate the newspaper in which the petitioner must publish the Citation. The petitioner should then contact that newspaper and make arrangements for publication in compliance with the Order (usually once a week for four consecutive weeks). Depending on the newspaper the Court designates to publish the Citation, the cost of publication may be quite significant or very meager.
Once the newspaper has published the Citation under the Court’s order, the publisher will give the petitioner an Affidavit of Publication, which is a sworn statement by an employee of the newspaper with a copy of the published Citations, swearing under oath the dates on which the newspaper ran the Citation in the newspaper. The petitioner would then file that sworn statement with the Surrogate’s Court, completing jurisdiction over the parties and allowing the matter to proceed. For more information on this topic, please contact me.