The jurisdiction of the Surrogate’s Court for an ancillary probate is based on the decedent having property in New York, or a cause of action for wrongful death against a New York domiciliary.
Venue for Ancillary Probate in New York
Venue for an ancillary New York probate administration is in the county where the decedent owned property. In the case of multiple counties, venue is proper in the first county where the Surrogate’s Court first exercises jurisdiction.
Ancillary Probate for Testate Estates
If the decedent had a will that has already been admitted to probate in another state, the Surrogate’s Court can accept the will as a valid will.
The only grounds upon which to object to an ancillary probate in New York of a will are that the will was not actually admitted to probate in the domiciliary jurisdiction, the will is being challenged in another jurisdiction, or the will has already been denied probate in New York.
SCPA Section 1602 provides:
1. A written will which upon probate may operate upon any property in this state shall be admitted to probate by the surrogate’s court having jurisdiction over the property upon proof that it has been admitted to probate at the testator’s domicile or has been established in accordance with the law of such jurisdiction, and if its probate or establishment remains subject to contest under the law of his domicile, upon proof that it is not being contested thereat. A will so admitted to probate under this section is sufficient to operate on any property within the terms of the will, subject to any limitations upon its operation imposed by the law of the testator’s domicile in respect of legal capacity. Rights granted by the law of the domicile to take against the will are not affected by this section.
2. A will offered for probate under this section may be contested only upon the ground that the conditions prescribed herein have not been satisfied or that the will has been denied probate in this state.
If the time frame for objecting to a will in the domiciliary probate estate has not lapsed, yet the New York ancillary probate is ready to conclude, New York law protects its ancillary administrators by limiting the time during which a New York ancillary administrator can be liable for distributions made to people not entitled to them after a successful will contest.
SCPA Section 1603 provides:
Effect of right to contest or of revocation
1. If under the law of the testator’s domicile the probate or establishment of his will therein is subject to contest within a time specified after probate or establishment, no property shall be transmitted to the domicile or distributed to beneficiaries under the will during such period of time unless the court which granted ancillary probate authorizes such transmission or distribution upon proof that
(a) 7 months have elapsed since the issuance of ancillary letters in this state,
(b) a contest of the will is not pending in the testator’s domicile and
(c) either the time provided in the domicile for the institution of a contest has expired or one year has expired since the will was admitted to ancillary probate under this article.
2. An ancillary fiduciary who transmits assets to the domicile or distributes to beneficiaries in good faith and pursuant to an order or decree under subdivision 1 shall be discharged from any liability even if the probate or establishment of the will at the domicile is thereafter set aside or revoked for any cause whatever.
Who Can Serve as Ancillary Administrator in New York?
SCPA Section 1605 provides the order of preference for appointing the ancillary administrator in a New York probate:
- The person named in the will as executor of New York property
- The person appointed as executor in the domiciliary estate
- The person named in the will as executor if not appointed in the domiciliary estate
- The person with priority under the general rule of appointment for New York domiciliary probate.
In the case of intestate estates, ancillary letters of administration will first issue to the person appointed in the domicile and otherwise issue to a person entitled to letters of administration under SCPA Section 1001.
Is an Ancillary Administrator Required in New York?
No. If the only purpose of the ancillary administration is to pass title, an ancillary administrator is not required. Probate of the will is sufficient to pass title. Of course, a title insurance company may require that an ancillary administrator be appointed and that an ancillary administrator sign a deed. If the intent is for a beneficiary to hold real estate long term and probate the will without the appointment of an ancillary administrator, a subsequent sale of the property to a third party purchaser my not go through without an ancillary administrator deed. Appointing an ancillary administrator years after probate in order to obtain title insurance for sale to a third party purchaser may not be advisable.
Powers and Duties of an Ancillary Administrator in New York
The ancillary administrator has all of the rights, powers and duties of a regular fiduciary. SCPA Section 1610 provides:
General powers and duties of ancillary fiduciary
1. The provisions of law governing the rights, powers, duties and liabilities of a fiduciary apply to a person to whom ancillary letters are granted under this article except where a special provision is otherwise made or where a contrary intent is expressed in or plainly to be inferred from the context.
Distribution From the New York Ancillary Estate
After the ancillary administrator has marshalled assets and paid creditors who have filed claims in the ancillary estate, the ancillary administrator can deliver the remaining ancillary assets to the domiciliary administrator. The surrogate’s court can also direct that the ancillary assets be paid directly to those persons entitled to receive them.
What if the Will Has Not Been Admitted to Probate in the Domiciliary State?
New York allows for non domiciliary probate for non residents of New York, with New York property, if the will has not been admitted to probate in the home jurisdiction, or indeed no probate at all is taking place. Such is somewhat common for a person who owns no assets and has no debts in the domiciliary jurisdiction, but owns property in New York.
SCPA Section 1605 provides:
Original probate
1. A will of a non-domiciliary which upon probate may operate upon any property in this state and is deemed by the laws of this state to have been validly executed for probate in this state, may be admitted to probate in the same manner as any other will may be admitted to probate under this act, except as herein otherwise prescribed.
In Matter of Heller-Baghero, 26 N.Y.2d 337 (1970), the Court of Appeals analyzed the factors to determine whether New York should do the original probate of a non-domiciliary Will.
The question is, rather, whether original probate should be denied because the proponent of the 1964 will did not intervene in the Austrian proceeding, but instead sought original probate in New York.
The “facts of the particular case” justify the entertainment of original jurisdiction, although they certainly would not compel it. First, the relative substantiality of the assets in New York, some 90% of the total estate, is a recognized ground for retaining jurisdiction (cf. Matter of Wolf, 144 Misc. 256, 259, supra). Second, the executor named in the 1964 will is a New York resident, as is one of the two legatees (the other, Mrs. Heller, is apparently a domiciliary of Austria). Most significant, the letter of the Austrian Justice Commissioner to Theodore Mattern, dated September 5, 1968 ( supra) indicated that the proof of the 1964 will in Austria would entail extensive litigation. It was only natural that the executor chose to litigate in New York, and perhaps forfeit the property located in Austria, rather than conduct the litigation there.
