{Read in 3 Minutes} As a Trusts and Estates attorney, I frequently represent Executors and Administrators of Estates. Most of the time, my clients have been appointed by the New York Surrogate’s Court and have received Letters from that Court. However, periodically, I will receive an inquiry from an Executor or an Administrator of an Estate located outside New York. Most typically, they need help collecting real property that the deceased owned in New York State.
Here is an example of how this might happen:
Perhaps someone died in another state or even in another country, and their local Courts appointed an Executor in that jurisdiction. In the same way, Executors and Administrators of New York Estates cannot collect real property outside of New York State, the out-of-state Executor or Administrator needs to commence a proceeding in New York State in order to collect, transfer, or sell the New York property. Simply presenting their local court’s Certificate of Appointment is not enough.
How does one apply for Ancillary Probate — or Ancillary Administration? The out-of-state Executor or Administrator would contact the Surrogate’s Court in the New York County where the property is located, either in the City of New York or in one of the many counties in New York State outside of New York City.
The Courts will ask the Executor to fill out a Petition for Ancillary Letters, which will involve getting certified/exemplified copies of the Court file from the Court or the out-of-state Court that appointed them. The Executor would then pay a filing fee.
While the Executor may not need to notify all of the other beneficiaries and family members if they’ve already done it in their local courts, the Court will make you serve any New York-based interested parties, including creditors of the Estate.
Also, the New York State Department of Taxation and Finance is an interested party that either needs to be served, or can waive the issuance of a summons upon the Executor by 1) signing a Stipulation with them, and 2) filling out an Affidavit of Domicile. Their website has an overview of the required forms.
Once the Executor submits this, the Court will process the papers, generally very quickly, and issue the Executor Ancillary Letters Testamentary (or in the case of an Administrator, Ancillary Letters of Administration). The Executor can then use these Certificates to sell or transfer real property in New York State.
If you are in a situation where you are applying for Ancillary Letters, I would strongly encourage you to do so after consulting with an attorney and/or an accountant. Why? Because the State Department of Taxation and Finance may require you to file a local New York Estate tax return related to real property in the state. The last thing an Executor or Administrator wants to do is run afoul of the tax departments.
For more information on this topic, please, contact me.