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Surrogate’s Court Procedure Act § 1004: Proceedings Upon Return of Process;  Decree

Estate administration is a process that occurs following someone’s death. It involves the managing of the decedent’s estate and disbursement of his or her assets. The process begins when with a petition is filed with the Surrogate’s Court to appoint an administrator. The petition must include a copy of the decedent’s death certificate and process must be properly served. However, there are occasions in which it is requested that death is presumed, and issues related to the procedure for issuing letters of administration. If you are an interested party in an estate administration proceeding where death is presumed, and you have concerns about the requirements of New York Surrogate’s Court Procedure Act § 1004, Proceedings upon return of process;  decree, contact an experienced New York estate administration lawyer at the Law Offices of Stephen Bilkis & Associates.

Related statutory provisions
  1. Persons who must be served with process;  waiver of process;  dispensation with service of process: Surrogate’s Court Procedure Act, § 1003
  2. Notice of application for letters of administration: Surrogate’s Court Procedure Act, § 1005
  3. Administration de bonis non: Surrogate’s Court Procedure Act, § 1007
Proceedings upon return of process;  decree

Under New York estate law, there are specific procedures that must be followed in cases where letters of administration are requested related to an estate of a person who is presumed to be dead.

  • Inquiry by Surrogate’s Court. The Surrogate’s Court must inquire into the facts surrounding the disappearance of the person who is alleged to be deceased. The court must be satisfied that the person is actually deceased. If the court is satisfied, then the judge will issue a decree declaring the person to be deceased. The court will also direct the issuance of letters of administration to the petitioner as long as he or she is entitled to letters.
  • Service of process. If process has been issued and returned, and no one objects to the appointment of the petition as estate administrator, the court will issue a decree granting that person letters. If service of process is not required, then the Surrogate’s Court judge can grant letters of administration as requested in the petition. For more information about service of process and legal requirements related to it, contact a skilled estate administration attorney in New York.
Requirements for letters of administration

As in any case where letters of administration are requested, the person wanting the letters must be eligible, and the person must follow procedure.

Process. A person who is interested in serving as estate administrator must file a petition with the New York Surrogate’s Court that has jurisdiction over the estate.

Eligibility. Anyone person is eligible to receive letters as long as they are not ineligible. Someone would be ineligible if he or she is under the age of 19, incompetent, has been convicted of a felony, is a non-domiciliary alien, or is unfit for any other reason. If you have questions related to the fitness of someone to serve as an estate administrator, contact an experienced New York estate administration attorney to review your concerns.

Order of priority. Being eligible to receive letters does not guarantee that the court will issue that person letters. There is an order for priority. Thus, if multiple eligible people petition to the court to receive letters, the court will review the relationship of the petitioners to the estate. For example, the decedent’s surviving spouse has first priority in being appointed estate administrator and receiving letters of administration. As long as the surviving spouse is eligible to receive letters and submits a petition, he or she will receive letters. Next in line is the decedent’s children, followed by the grandchildren, parents, and then siblings. If none of those relatives are eligible or willing, next in line to receive letters are other distributees.

Surrogate’s Court Procedure Act § 1004. Proceedings upon return of process;  decree
  1. Upon the return of process in a proceeding for letters of administration upon the estate of a person alleged to be deceased the court must inquire into the facts and take proof thereof and if it appears that he is dead the court may make a decree so determining and directing the issuance of letters of administration upon his estate as prayed for in the petition or to such other person who may appear entitled thereto.
  2. When process has issued and been returned with proof of due service thereof and no objections have been interposed to the appointment of the petitioner the court may make a decree granting letters of administration as prayed for in the petition or to such other person who may appear entitled thereto.
  3. When the issuance and service of process is not necessary or has been dispensed with the court may make a decree granting letters of administration as prayed for in the petition or to such other person who may appear entitled thereto upon presentation of the petition.
Contact the Law Offices of Stephen Bilkis & Associates

For over two decades the estate administration attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have skillfully and compassionately represented New York clients in matters related to the administration of estates. If you have concerns related to the administration of an intestate estate including the requirements of New York SCPA section 1004, Proceedings upon return of process;  decree, or any other estate 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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Mr. Bilkis handled both my father and mother's estate issues through very difficult times he was compassionate kind and understanding. In fact the whole firm showed great empathy. Despite the emotional hard time we were having that quickly and efficiently handle all the matters that were necessary to get us the result we desired. Can't recommend them enough. B.B.
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