3.13 - A. Administration Petition (Form A-1)

• Jurisdiction: New York

a. Administration Petition (Form A-1)

Caption—In addition to filling in the venue, it is important to identify the decedent by every name under which he or she was known. The letters evidencing the fiduciary’s authority will reflect each of these names, as listed in the petition. If an asset of the decedent is discovered bearing a name used by the decedent but not reflected in the letters, collecting such asset may be difficult. Additionally, the type of letters being sought must be indicated.²⁷¹ The remainder of this subsection discusses Official Form A-1, item by item:

Item No. 1—Information is requested concerning the identity of the petitioner or petitioners. A petition for administration may be presented by someone other than the person to whom letters ultimately will issue. Pursuant to SCPA 1002(1), a petition may be presented by:

1. Any person interested in the estate of an intestate or a person alleged to be deceased; ²⁷²

2. Any person to whose appointment as administrator all distributees consent pursuant to SCPA 1001;

3. The public administrator or chief fiscal officer of the county;

4. A creditor; or

5. A person interested in an action brought or about to be brought in which the decedent would be a proper party.

There is no order of priority among the persons who may petition, and any of the above persons or member of a class of such persons may present an administration petition to the court. Nevertheless, irrespective of the petitioner’s identity, letters of administration will be granted only according to the statutory priority established by SCPA 1001.

In addition to the name and domicile of the petitioner, the status and citizenship of each petitioner must be alleged.²⁷³ If the proposed administrator is an attorney, that fact must be disclosed.²⁷⁴ Also, the petitioner’s status as a convicted felon must be alleged.

Item No. 2—Information concerning the decedent is required, including the name, date and place of death, domicile and citizenship. The decedent’s domicile must be specified with particularity, since it is the primary basis for the surrogate’s court’s subject matter jurisdiction over the proceeding.²⁷⁵

In conjunction with the administration proceeding, a death certificate must be filed to establish the fact of death. In the event a death certificate is unavailable (as, for example, in the case of an absentee), other proof will be required to establish the fact of death.²⁷⁶ If the decedent’s domicile is different from that shown on the death certificate, the applicable box must be checked, and an explanatory affidavit annexed.

The citizenship of the decedent is pertinent because notice of the application must be given to the consul of an alien decedent’s country of citizenship.²⁷⁷ Note that this requirement does not affect the subject matter jurisdiction of the court, which is based upon domicile, not citizenship.

Item No. 3—Use a “best estimate” in fixing the value of personal and real property. The primary purposes for these questions in this proceeding are to enable the court to fix a filing fee pursuant to SCPA 2402²⁷⁸ and to fix the penalty amount of any bond to be filed by the administrator in order to qualify.²⁷⁹ When describing parcels of real property, it is not necessary to include the legal description; a street address or other generally accepted location description is sufficient. Do not include in this estimate the value of property which passes outside the estate by operation of law (e.g., joint property, life insurance policies having a named beneficiary, unrevoked Totten trusts, etc.).

If there is a cause of action on behalf of the decedent or his or her distributees which survives the decedent’s death, a brief description of such action should be given under subdivision (d) of the form, setting forth relevant information to the extent known. Subdivision (e) relates to distribution of wrongful death proceeds where the decedent is survived by a spouse and parent (or parents) but no issue. In this case, EPTL 5-4.4(a) provides for distribution to the parents, as well as the spouse, thereby creating a special exception to the general rule that wrongful death proceeds accrue exclusively to the benefit of distributees.²⁸⁰

Item No. 4—This is an allegation that the decedent left no will. In a situation where there is or might be a will, an appropriate allegation should be substituted.²⁸¹ SCPA 1001(9) provides a statutory basis for an administration proceeding even if there is a will (i.e., when a writing alleged to be a will has been filed in court, but probate proceedings have not been instituted within a reasonable time or have not been diligently prosecuted).

Item No. 5—The allegation in this item, that no application has ever been made for letters of administration upon the estate or for probate of a will of the decedent, should be investigated to determine that it is consistent with the facts of the particular case. Here again, if the statement is incorrect, it should be revised. Only a search of the records of the court of the county in which the petition is being filed is required. With respect to other counties, the form’s allegation as to the fact that “petitioner is informed and verily believes that no such application ever has been made” is sufficient, if true.

Item No. 6—This item requires only the number (not the names, addresses or other identification) of persons who are the distributees of the decedent as set forth in EPTL 4-1.1 and 4-1.2 and N.Y. Domestic Relations Law § 117 (DRL).²⁸² The information provided in this item will be expanded with information to be provided under item no. 7 in the petition.

Each of the brackets requires the insertion of a number, the word No or an X as called for in the instructions to the item. After the distributees have been determined, the number of such individuals in each class should be inserted in the appropriate brackets. The word No should then be inserted in the brackets next to all classes prior or equal in right, thus indicating that there are no members in that particular class. All subsequent classes should be marked with an X, whether or not there are any living members in such class.

Example:

Decedent is survived by his mother, three brothers and one grandparent. Item no. 6 would be completed as follows:

6. The decedent left surviving the following who would inherit his/her estate pursuant to EPTL 4-1.1 and 4-1.2:

a. [No] Spouse (husband/wife).

b. [No] Child or children or descendants of predeceased child or children. [Must include marital, nonmarital and adopted].

c. [No] Any issue of the decedent adopted by persons related to the decedent (DRL...