Surrogate’s Court Procedure Act § 1403: Persons to be Served; Content of Process

When someone passes away and leaves a will, the will and the person’s estate must go through a probate administration process before the person’s assets can be transferred to the beneficiaries the testator named in his or her will. To ensure that the rights of anyone who has an interest in the estate of the decedent are protected, New York Surrogate’s Court Procedure Act § 1403, Persons to be served;  content of process, requires that those with an interest in the proceeding be notified of the probate proceeding. The law also has specific requirements as to the content of process. To learn more about who is required to be served, as well as other details related to the procedural requirements related to a probate proceeding, contact an experienced New York probate attorney at the Law Offices of Stephen Bilkis & Associates.

Related statutory provisions

1. Proceeding to compel production of will: Surrogate’s Court Procedure Act, § 1401
2. Who may propound will;  contents of petition;  direction of court: Surrogate’s Court Procedure Act, § 1402
3. Witnesses to be examined;  proof required: Surrogate’s Court Procedure Act, § 1404

Who must be served

Under New York Surrogate’s Court Procedure Act § 1403, Persons to be served;  content of process, when a petition for probate is filed, there are certain individuals who must be informed via service of process, if that individual is not the person who filed the petition.

• Distributees. A distributee is defined in New York Surrogate’s Court Procedure Act § 103, as anyone who is entitled to a share of the decedent’s estate based on the laws of intestate succession. A distributee is not necessarily a person who is mentioned in the testator’s will. It is a person who would be entitled to inherit a portion of the decedent’s estate in the absence of a will. As a New York probate lawyer will explain, distributees can include the surviving spouse, children, grandchildren, parents, siblings, grandparents, and other relatives based on an order for priority outlined in the intestate succession statute.
• Executor. The executor is the person that the testator charged in the will with the responsibility of finalizing the testator’s estate and distributing assets based on the terms of the will. The executor must be served. Oftentimes a testator will also name a successor executor who would serve in the event the primary executor is unable to fulfill the duties of the executor. The successor executor is not required to be served as long as the primary executor is able and will to serve.
• Beneficiary, executor, trustee, or guardian. Any beneficiary, executor, trustee, or guardian, whose interests are adversely affected by a prior instrument, or any other will that has been filed with the New York Surrogate’s Court.
• Testator. If the document filed alleges that the testator is believed to be dead, process must be issued to the testator.
• Power of appointment. If the will refers to an instrument that created a power of appointment, any individuals in the instrument whose interests are adversely affected by the instrument offered for probate must be served.
• New York State tax commission. If the testator is non-domiciliary, the New York State tax commission must be served. Non-domiciliary means that the testator did not have a fixed, permanent and principal home within the state of New York.
• Fiduciaries of deceased individuals. If a person who is required to be served under Surrogate’s Court Procedure Act § 1403, Persons to be served; content of process, is deceased, then that person’s fiduciary or that person’s distributees must be served.

In addition, the law requires that specific information must be included in the process. To learn more about the service of process requirements related to a proceeding for probate, contact an experienced probate attorney in New York.

Surrogate’s Court Procedure Act § 1403. Persons to be served; content of process

In a proceeding for the probate of a will process must issue to the following persons if not petitioners:

1. The distributees of the testator.
2. The person or persons designated in the will as executor except that a person designated in the will as substitute or successor executor in the event the designated executor cannot act or fails to qualify need not be served where the designated executor is under no disability.
3. Any person designated in the will as beneficiary, executor, trustee or guardian, whose rights or interests are adversely affected by any other instrument offered for probate that is later in date of execution or which amends or modifies an instrument offered for probate.
4. Any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate's court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate.
5. If the propounded will expressly refers to an instrument which created a power of appointment and purports to exercise such power of appointment, any persons designated in the instrument that created such power of appointment whose rights or interests are adversely affected by the instrument offered for probate.
6. The testator in any case where the petition alleges that the testator is believed to be dead.
7. The state tax commission in the case of a non-domiciliary testator.
8. Where any person to whom process is required to be issued has died, process shall issue to his fiduciary and if none has been appointed, to all persons interested as distributees, nominated fiduciaries or named as legatees or devisees under any will of the deceased filed in the court.
9. The provisions of section three hundred fifteen shall apply to a proceeding under this section.

Contact the Law Offices of Stephen Bilkis & Associates

The probate attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have over twenty years of experience representing clients in matters before the New York Surrogate’s Court, relating to probating wills, probate litigations, estate administration, and other estate and probate matters. If you have questions or concerns related to the requirements of New York SPCA section 1403, persons to be served; content of process, contact one of our attorneys at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Brooklyn, Manhattan, Nassau County, Queens, Long Island, Staten Island, Suffolk County, Bronx, and Westchester County.