There are two types of Surrogate’s Court Petitions that often give a lot a value. These are:

Petition to Compel Production of a Will and Petition to Compel an Accounting. These are proceedings that can be used when you are trying to get things going and nothing is happening.   Not only are these petitions relatively easy to bring, they force recalcitrant players to come to Court and/or hire lawyers.  Very often these elements advance a situation and hopefully create momentum to get the matter resolved.

When you are in the right, sometimes the best thing that can happen is your adversary gets an attorney.  When this happens, there is now somebody other than you and me telling the adversary they are wrong.  Sometimes people need to hear it from someone they trust.  Also, the reality of what it will cost to pay a lawyer to defend a bad position is often a big incentive to start negotiating.

PART 1 – Petitions to Compel Production of A Will

I will make some references to New York law, but I dare say there are similar proceedings in most (if not all) States.  For our discussion here, I am primarily interested in the practical and tactical issues in these types of proceedings.

What do we do if someone has died, some time has passed, we know/believe there is a Will (and we believe we know who has it), but for some reason they are not doing anything with it?  There are reasons someone would act this way.  It pays to think about why.  If the person is living in the  decedent’s house, almost anything they do will make their financial situation worse.  Sometimes the person doesn’t have the financial ability to retain an attorney and pay the Court filing fees.  Sometimes they are paralyzed by emotions.  Sometimes they just don’t know what to do.

Of course, sometimes we know what’s in the Will we are looking for and sometimes we don’t (we just know/suspect there IS a Will).  Hard as it might be, you have to find out.

In any event, we need to get the Will filed because until that time, nothing positive can happen and problems just become bigger problems.

Factored into this, sometimes, are situations where a client may have the right to file under intestacy and become the fiduciary (in NY this would be an Administrator).  However, it’s a bad situation when you do the work and pay the fees as if there’s no Will, and then some knucklehead wakes up and files the Will. Just to add another challenging scenario, what if you had inheritance and/or fiduciary rights under an earlier Will…so that if there is no later Will the Will you have would be IT.  Prior wills raise all kinds of issues and problems.

I try to stay away from legal talk and Citations, BUT, the applicable law is pretty clear…

A Petition to Compel the Production of a Will can be brought under Surrogate’s Court Procedure Act (SCPA) sec 1401.  SCPA 1401 says….

“Whenever it shall appear to the court, sua sponte, or by the petition of a person authorized under the succeeding section of this act to present a petition for the probate of a will, that there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a will of a decedent the court may make an order requiring the person or persons named therein to attend and be examined in the premises. Service of the order must be made by delivery of a certified copy thereof to the person or persons named therein either personally or in such manner as the court shall direct. The court may either in the order or otherwise in the proceeding require the production and filing in court of any will of the decedent which it finds is in the possession or under the control of the respondent. The court may impose the reasonable attorneys fees of the petitioner in such a proceeding against a respondent when the court determines the respondent did not have good cause to withhold production of such will or codicil.”

So, the Court is authorized to order people to “attend and be examined” regarding Wills they might have.  You start the proceeding with the intention of convincing the Court to issue a Citation directing a person to bring the Will to Court and possibly be examined (questioned under oath).  Per the statute, when the Court signs the Order, a certified copy of it must be personally served (though the Court can fashion alternate means of service if there is a problem).

The person gets served with a Citation, directing them to come to Court at a certain date and time and Answer the Citation.  The most frequent result is that when you Answer the calendar in support of the Petition, the person who was served comes up to the bench, says “Here”, and hands over the Will.  When this happens, this particular proceeding is done.

The ball is then in someone’s court to file a proceeding regarding the Will.  At least now, with the Will filed in Court, if the person doesn’t do anything, YOU CAN.  If they try to snooker you after you Petition, by saying they are named in the Will, you have great grounds to object.  “Look how irresponsible they were, look at conflicts of interest, look what they cost the Estate, etc.”

Sometimes the person gets an attorney and they file the probate papers and get things moving.  If this happens, you got what you needed…something is happening.

Sometimes people come to Court and deny they have a Will.  In this case it pays to consider what questions you might ask this person on the record, which may be pertinent to finding the Will or establishing there isn’t one.

Sometimes people get served with the Order and don’t show up.  The remedy, and this applies to any ignored court orders, is to file a Contempt Proceeding. Are people ever brought into Surrogate’s Court in handcuffs for violating a Court Order? YUP, I have seen it many times.  Also, receiving the Contempt paper saying they are going to be arrested if they don’t show, often has the person come in with the Will and say “Uh, here.”

A few New York Surrogate’s Court notes:

You should check whether the particular County’s Surrogate’s Court does these Petitions in the probate department or the misc. department (yeah, it’s really called that).

Like many proceedings, you have to prepare a proposed Order.  When you serve the Order, since it must be certified you need to ask whether it needs to be Court certified or whether an attorney can certify.  Also, the Affidavit of Service must state that a certified copy was served.

In the statute, where it says “sua sponte”, this means “on its own”.  So, if there is a Court proceeding going on and the Court thinks there is a Will out there, it can issue an order sua sponte (even without someone filing a Petition).  I saw it happen once.

The filing fee for a Petition to Compel Production of a Will is $20.

Coming Next – Part 2 – Petition to Compel an Accounting

Comments and questions always welcome!