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Surrogate’s Court Procedure Act § 1003: Persons Who Must be Served With Process;  Waiver of Process; Dispensation With Service of Process

When someone dies intestate, there are procedural rules that must be followed related to the administration of his or her estate and the distribution of assets. The New York Surrogate’s Court must appoint an estate administrator. This process involves anyone having the legal right to administration filing a petition with the court. The law also requires that petitioners must serve certain individuals with notice of the petition. If you are involved in the administration of an intestate estate and have concerns about the service of process requirements of Surrogate’s Court Procedure Act § 1003, Persons who must be served with process;  waiver of process;  dispensation with service of process, contact an experienced New York intestate succession lawyer at the Law Offices of Stephen Bilkis & Associates who can ensure that all procedural requirements are met.

Related statutory provisions
  1. Order of priority for granting letters of administration: Surrogate’s Court Procedure Act, § 1001
  2. Petition;  persons entitled to petition for appointment of an administrator: Surrogate’s Court Procedure Act, § 1002
  3. Proceedings upon return of process;  decree: Surrogate’s Court Procedure Act, § 1004
Intestate succession rules

Under New York’s intestacy laws, only a surviving spouse and certain blood relatives have the right to inherit the property of a decedent who does not have a will. If a decedent has a surviving spouse and no children or grandchildren, then the spouse will inherit 100% of the decedent’s estate. If the decedent leaves a spouse as well as children or grandchildren, then the spouse and the children will share in the entire estate. The share of a predeceased child will go to that child’s children (the decedent’s grandchildren.) Legally adopted children are treated the same way as biological children, while foster children and stepchildren who were never legally adopted by the decedent would not be entitled to an intestate share. In the absence of a surviving spouse, children, or grandchildren, other relatives would be entitled to an intestate share, including the decedent’s parents and siblings based on a statutory order of priority. As a New York intestate succession lawyer will explain, the rules of intestate succession do not allow a non-relative or an institution to receive anything, even if there is evidence that the decedent wanted to leave property to friends and institutions.

Persons who must be served with process;  waiver of process;  dispensation with service of process

There are special rules related to service of process that must be followed when petitioning the New York Surrogate’s Court of letters of administration where the decedent died intestate.

  • Alleged decedent. If the circumstances are such that the estate is of a person alleged to have passed away, process must be served to that person and all of his or her presumptive distributees.
  • Prior right to administration. Process must also be served to anyone who is eligible to receive letters of administration, and who has a right to administration prior or equal to that of the petitioner. The exception to this requirement is for those who have renounced their right to serve as administrator.
  • Incompetents. If the person petitioning for letters is a creditor, then process must be served to incompetents, conservatees and infants for whom a committee, conservator or guardian of the property has been appointed, unless they are non-domiciliaries.
  • Renunciation of right. If someone who has the right to administration prior to or equal to the petitioner renounces his (or her) right, he can waive service of process in the manner prescribed law.
  • Whereabouts unknown. If the whereabouts are unknown of someone who has the right to administration prior to or equal to the petitioner renounces his (or her) right, the petitioner does not have to serve process on that person.

If you have the right to administration and you plan to petition the Surrogate’s Court for letters of administration, contact a skilled intestate succession attorney in New York who understands the procedural requirements for petitioning the court.

Surrogate’s Court Procedure Act § 1003. Persons who must be served with process;  waiver of process;  dispensation with service of process
  1. In a proceeding for letters of administration upon the estate of a person alleged to be deceased process shall issue directed to such person and to all his presumptive distributees.
  2. Every eligible person who has a right to administration prior or equal to that of the petitioner and who has not renounced must be served with process upon an application for letters of administration. When the petitioner is a creditor or a person interested in an action brought or about to be brought in which the intestate, if living, would be a party, process shall also issue to all incompetents, conservatees and infants for whom a committee, conservator or guardian of the property has been appointed who are domiciliary distributees. When the petitioner is a public administrator or county treasurer  1 process shall issue only to such incompetent or conservatee domiciliary distributees whose names and addresses are known to him. The court may dispense with the issuance and service of process upon non-domiciliaries.
  3. Any person who has a right to administration prior or equal to that of the petitioner may renounce his right and waive the issuance and service of process by an acknowledged instrument which must be filed in the office of the clerk of the court, except that a public administrator or the chief fiscal officer of the county may not renounce his right and may only be excused from acting, 2 upon his motion duly made and an order made and entered thereupon by the court.
  4. The court may dispense with service of process upon a person who has a right to administration prior or equal to that of the petitioner where it appears that the name or whereabouts of such person is unknown and cannot be ascertained after diligent inquiry, subject to the requirement that the decree granting the letters shall contain a provision directing that in the proceeding for the judicial settlement of the account of the administrator process shall issue and be served upon such person.
  5. If an application for letters of administration be made under the circumstances provided in 1001, subdivision 9, process shall also issue to the persons named in the paper writing referred to in that section and the persons to whom process would be required to issue in a proceeding for the probate of such paper writing.
Contact the Law Offices of Stephen Bilkis & Associates

The administration of an estate where the decedent is presumed to have died involves extra layers of complications not typically present. For over two decades the intestate succession attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have successfully represented clients in complex estate administration and estate litigation matters. If you have concerns related to the administration of an intestate estate including the requirements of New York SCPA section 1003, Persons who must be served with process;  waiver of process;  dispensation with service of process, or any other estate, will, or trust matter, contact one of our attorneys at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Long Island, Nassau County, Bronx, Brooklyn, Manhattan, Queens, Staten Island, Suffolk County, and Westchester County.

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