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D-I-Y in Surrogate’s Court: When Do You Need an Attorney?

D-I-Y in Surrogate’s Court: When Do You Need an Attorney? by Tom Sciacca

{Read in 7 minutes} Perhaps more than any other Court, Surrogate’s Court, is a Court that handles matters that affect a large segment of the population across all walks of life. Let’s face it: whether we like it or not, everybody dies, and family and friends are often left to deal with issues related to the death of a loved one.

That said, not every matter in the Surrogate’s Court is complex, nor is every person in a position to hire an attorney, even if they want to. Unlike a Criminal Court proceeding where the accused is provided with a lawyer free of charge if they are unable to pay for one, in Surrogate’s Court most people who have lawyers simply have no choice but to pay for them out of their own pockets. However, there are some things that are helpful for people who either want to, or are not in a position to, hire an attorney to represent them.

For people who are starting a proceeding in the Surrogate’s Court, the Court has online forms with fill-in-the-blank checklists for probate and administration proceedings. Here, and a variety of other proceedings that the Court entertains on a regular basis, these resources may be enough for some people to proceed without an attorney.

While the forms are helpful and available for free, it’s important to remember that they are not a substitute for legal advice. Court personnel are generally incredibly helpful and patient, they are not allowed to give you legal advice concerning legal positions you should take when filling out a form. Hence, the benefit of hiring an attorney – your chirpa through the Court system.

There are some things that are relatively simple to do, and the vast majority of people will do these types of things in the Surrogate’s Court without hiring an attorney (even if they have the means to hire one). Some examples:

– Very Small Estates

These are known as Voluntary Administration Proceedings. In a Voluntary Administration Proceeding, an interested party can collect the assets of a deceased when those assets total $30,000 or less. Remember, assets that are not payable through the estate, don’t count towards that $30,000. For example, if a married couple has all of their accounts held jointly, and has named each other as beneficiaries, normally they will not need to offer a Will for Probate. However, if there are just a couple of small bank or brokerage accounts that were in the name of the deceased spouse, the surviving spouse can start a Voluntary Administration Proceeding to collect it.

This is an expedited proceeding that is designed to allow quick administration of an Estate with minimal delays and costs. In fact, the filing fee is only $1—you’ll pay more to ride the subway down to the Courthouse than you will in Court filing fees. The forms are very user-friendly and most people handling a small Estate choose not to hire an attorney, feeling that the expense of legal fees may not be justified by such a small amount of money. If you’re interested in viewing the forms for Voluntary Administration, they are available online here.

Searching for Wills, Life Insurance Policies, and Burial Plot Deeds

Very often, there are some papers that a deceased’s loved ones need to get their hands on sooner rather than later. For example, if the deceased had a Will, the Court will require that the nominated Executor produce the original Will in court for Probate. Similarly, family members may need to get their hands on a burial plot deed in order to bury the deceased, or a life insurance policy to help pay the related funeral costs.

This can be difficult if those who need it don’t have access to the apartment. For example, if the deceased lived alone and died in his or her apartment, it’s not uncommon for the police department to seal the apartment with police tape. Even if the person died of natural causes, the police often require a Court Order to break the seal to search for these documents. Similarly, if the deceased kept his or her important papers in a safe deposit box, the bank will require a Court Order to access it after the deceased has died, even if the family has a key to the box.

But the Court can help you! The Surrogate’s Court has two very simple fill-in-the-blank petitions that parties can fill out. These are often done without an attorney, to get a quick Court Order to search a residence or a safe deposit box. You can access the petition to search the residence and the petition to open a safe deposit box on the Court’s website – don’t forget to read the instructions!

– Guardianship of Minors or Adults with Intellectual Disabilities

As discussed before, leaving money to children creates a series of issues. And sometimes, providing a legacy for someone who is enrolled in needs-based government entitlement programs, or suffers from an intellectual disability, creates its own issues. It is very often necessary for someone to apply for guardianship—unlike guardianship for adults with diminished capacity, which is generally handled in the Supreme Court—the Surrogate’s Court handles these matters routinely.

A guardianship proceeding in the Surrogate’s Court is a much more streamlined and inexpensive procedure. For minors who inherit money, parents—or other interested parties seeking to become the children’s legal Guardian until they turn 18—can often fill out the papers themselves. (Online forms are available here). For those family members who feel that a loved one with an intellectual disability is likely to suffer harm unless a Court-appointed Guardian is in place, it is a good idea to visit the Guardianship Department of their local Surrogate’s Court to get the preferred local forms; as of the date of this blog, the forms to apply for this type of guardianship are not available online, but a helpful checklist is on the Court’s website.

In conclusion, there are a variety of situations where a party may reasonably make a decision not to hire an attorney for a very simple matter. More complicated matters, such as probate proceedings, Will Contests, Contested Accountings, and more savvy proceedings are the types for which one would be wise to have an attorney.

The New York State Office of Court Administration has provided many, simple fill-in-the-blank forms for those who choose to do the simple proceedings described above without an attorney. For more information on this topic, or if you would like to retain an attorney to handle a simple or complicated matter, please contact me.