The Surrogate’s Court: An Introduction

January 31, 2013 | Trusts & Estates

Our state constitution and statutes provide that each one of the counties of the State of New York has its own Judge of the Surrogate’s Court, commonly referred to as the “Surrogate”.  The laws allow, when necessary, that a county may have more than one Surrogate.  As of the time of the writing of this article, there are only two counties in the State that have two Surrogates: New York County (Manhattan) and Kings County (Brooklyn). 

The Surrogate’s Court is a county level court, but has statewide jurisdiction to adjudicate and enforce its orders and decrees.  As a court of limited jurisdiction, the primary duty of the Surrogate’s Court is to “exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents” (Surrogate’s Court Procedure Act, §201(3)).  For example, if a decedent dies leaving a will, the nominated executor, the person named in the will to administer the estate, would file the original Will with the Surrogate’s Court in the county in which the person was domiciled at the time of his death to have that will “admitted to probate”.  Then the Court, upon the filing of certain documentation and court forms, issues a decree that grants probate to the will and authority to the executor to administer the estate.  Once the will is admitted to probate, the provisions of the will are given full force and effect under the laws of the State of New York and the Surrogate has the jurisdiction to enforce the provisions of that will, and if necessary, to adjudicate disputes that may arise as a result of the probate of that will.  In the event the will is contested by a party who has the standing to do so, the probate of the will becomes a matter of litigation and the Surrogate will oversee the pre-trial discovery proceedings, and, in the absence of a settlement, a will contest will ultimately be tried before the Surrogate, generally with the assistance of a jury.  But there is more.

The Surrogate’s Court also has the authority to appoint guardians for infants, which under New York Law, are persons under the age of 18 years, and in certain instances, to appoint guardians for adults who suffer from an infirmity or disability, which requires the assistance of a duly appointed guardian to monitor their personal and/or financial affairs.  Once the Surrogate appoints a legal guardian, either for an infant or a person under a disability, he and the members of his administrative staff continue to monitor the activities of that guardian until they are duly discharged by the Court.  In addition, the Surrogate has the power to process and authorize adoptions.  In future articles,?I will discuss the various roles of the Surrogate’s Court and how you, the layman, can successfully maneuver through this complex arena.

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