I represent clients on a variety of Surrogate’s Court matters. Examples are below:
- Wrongful death compromises
- Creditors’ Petitions for Appointment of Estate Fiduciary
- Construction proceedings
- Reformation proceedings
- Right of election proceedings
- Discovery proceedings
WRONGFUL DEATH COMPROMISES
If the executor or administrator of an estate obtains a recovery from a person whose wrongful conduct caused the decedent to sustain pain and suffering, and then death which caused the relatives to suffer losses that can be compensated with money, that estate fiduciary must bring a proceeding to have the Surrogate’s Court allocate the recovery. The amount attributed to the suffering of the decedent before he/she died will become part of the probate estate, while the amount attributed to the loss suffered by the relatives will be payable directly to them, in such proportion as the court determines.
CREDITOR’S PETITIONS FOR APPOINTMENT OF ESTATE FIDUCIARY
One cannot sue a dead person. To sue for payment of a debt owed by a decedent, the creditor must sue the estate fiduciary. The deceased debtor might have left a will, but no one petitions to have it admitted to probate. Or, the deceased debtor might have had no will, and no one petitions to be appointed administrator. In such a situation, to sue the estate, the creditor can initiate the probate proceeding or administration proceeding. Once there is an estate fiduciary, the creditor can then sue the fiduciary.
When a provision of a will is not clear because the wording of the will is ambiguous, causing a dispute or potential dispute to arise, the court must construe the meaning of the unclear language. Hence, the term “construction proceeding.” It is all about divining what the intention of testator/testatrix was.
When the intention of the testator/testatrix is clear, but the language of the will does not articulate that intention – perhaps due to poor drafting or to a change in the law subsequent to the signing of the will –the court can be asked to “reform” the will so that the language directs what the testator/testatrix actually desired.
RIGHT OF ELECTION PROCEEDINGS
These are proceedings to have the court determine the validity of a surviving spouse’s right of election to obtain one-third of the deceased spouse’s estate regardless of what was given to the surviving spouse under the will, and to calculate the amount of the elective share.
These are proceedings usually brought by an estate fiduciary to obtain disclosure from persons who may hold or have knowledge of property that is or might be a probate asset, and to obtain possession of the probate asset from the person in control of it.
Occasionally a “reverse discovery proceeding” is brought against an estate fiduciary by a person who claims that property held by the estate fiduciary is not, in fact, a probate asset but actually belongs to the claimant.