{Read in 4 Minutes} As a Trusts and Estates Attorney, I frequently appear in the Surrogate’s Court. This may be for a probate proceeding, an administration proceeding, an accounting proceeding, or a guardianship proceeding.
Any of these Surrogate’s Court proceedings involve a person bringing a Petition before the Surrogate’s Court, asking for some specific relief. The Court needs to ensure that all of the interested parties to that proceeding receive notice, and have an opportunity to be heard in opposition (if they wish to oppose the relief). That’s where the service of process comes in.
“Service of process” is a legal term that is the formal notification to the interested parties that the petitioner has started a proceeding — not to be confused with a very popular dance movie from about twenty years ago! In Surrogate’s Court, this almost always happens when the Court issues a Citation.
There are various ways that the petitioner (or more often than not, the petitioner’s counsel) will arrange to serve those interested parties with the Citation. Our statutes in New York dictate the manner of service, and I thought I would summarize some of the most common methods:
New York Residents
According to our statutes, New York residents must receive, in hand, personal service of the Citation. This means that the petitioner needs to engage the services of a process server to hand-deliver to the recipient at least 10 days before the return date of the Citation.
Note: A process server is not strictly necessary. The Surrogate’s Court is one of the few courts that allows the parties themselves to serve other parties. However, as a practical matter, most people always use process servers.
Parties Residing Outside of New York State, but within the United States
For parties residing in the US, including all US territories, the petitioner serves the Citation by certified mail with return receipt requested. There is no requirement to include any sort of correspondence with the Citation. The Citation gives the recipients all the information they need. For some proceedings, such as accounting proceedings or probate proceedings, the Citation gets served with a copy of the accounting summary statement or the Will being offered for probate. Check the language in the Citation to determine if any supplemental documents are necessary.
People Residing Outside the United States
If someone resides outside the United States, the statutes allow direct service by registered mail, with a return receipt requested. Like with certified mail, no cover letter is included (unless the proceeding requires, as described above). It’s just a registered mailing rather than a certified mailing.
Special Service
The Court can direct special services. For example, possibly there are parties whose whereabouts are unknown, and the Court directs publication in a newspaper. Or, for example, a New Yorker is avoiding service, so after making several attempts, the Court will issue an Order allowing service by mail to the New Yorker. Or, there may be a special service. For example, during the height of the COVID pandemic, the Court allowed all services by mail to avoid close contact between people and further the spread of a deadly virus. Note that a party needs to make a special application to the Court to get special service.
Once the party has completed service, they are required to file an affidavit showing the Court that they have done so. Process servers will create their affidavit and give it to the petitioner or the petitioner’s attorney, to file with the Court.
For service by certified or registered mail, the Court is looking for an affidavit from the person who did the mailing that states when and where they mailed it, and providing the return receipt cards (or the online USPS tracking, if the cards have yet to come back). Parties must file these documents at least a couple of days in advance of the return date of the Citation. For more information on this topic, please, contact me.