{Read in 5 Minutes} As a Trusts and Estates attorney, I frequently represent people who are bringing petitions before the Surrogates Court. This might be a petition to probate a Will, or to appoint an Administrator of an Estate when someone dies without a Will, to compel an accounting, or even to appoint a Guardian.
All of these petitions have specific requirements concerning their contents, and it is essential that a party ensure that everything that’s supposed to be in the petition winds up in that petition. Otherwise, you’re looking at delays (the Court will review the petition, identify what is missing, and then require corrections). The good news is that many of these petitions come with fill-in-the-blank forms, which are publicly available on the Court’s website. Some of the courts maintain general checklists for probate administration, accounting, and voluntary administration proceedings.
It’s worth it to compare the petition against the checklist — That’s probably what the clerk is going to do anyway when reviewing the papers. But what happens if you are filing a petition that is not cookie-cutter, meaning that the Court does not see many petitions like this and there is no default fill-in-the-blank form. Examples of this might be to declare a marriage invalid postmortem, to invalidate a trust that someone created during their lifetime, or to discharge an Administrator’s bond. In a situation where there is no standard form, New York has a statute that sets forth the five technical requirements for every single petition brought before the Court:
1. Name and Address:
The Court needs the name and domicile legal residence of the person who is bringing the petition, the petitioner, and the person whose Estate the facts are related to, or the petition relates to (in most cases, the deceased).
2. Facts:
The Court needs a basic summary of the pertinent facts: Why are you trying to have the Trust invalidated? Why won’t the beneficiaries consent to the dismissal of the bond, et cetera?
You don’t need to try your whole case in the petition, nor is it necessary to attach dozens of exhibits, making a petition that’s hundreds of pages long. A brief overview is sufficient for the Court.
3. The Names and Addresses of All Interested Parties:
Who’s involved here? Who are the parties? Is it the Executor or Administrator? Is it the beneficiaries? Are there creditors? Is it someone else entirely? The Court needs to know the name and address of each party and how they are interested in the proceeding. Also, if they are under a legal disability — minors, people with diminished capacity, incarcerated individuals, or those whose identities or whereabouts are unknown. In this case, the Court may appoint a Guardian Ad Litem to protect their interests.
4. Nobody Else:
The petition must affirmatively state that there are no other interested parties, except those listed above.
5. Relief Request:
What relief or remedy are you requesting from the Court? Are you requesting that someone turn over an asset that you think belongs to the Estate or prevent a burial where the deceased always wants it to be cremated? You have to affirmatively tell the Court what it is you are asking it to do.
6. Petitions Must Be Signed and Verified.
This means the petitioner must sign the petition in the presence of a notary public. The petition should include a “verification” statement, affirming that the contents are true to the best of the petitioner’s knowledge.
It’s worth a little review to ensure that your petition meets all the technical requirements before filing. It will prevent the clerk from having to come back and request further information. It can also help the Court process your papers more efficiently.
For more information on this topic, please contact me.