Preparing Your NYC Probate Petition: Interested Party vs. Necessary Party
Individuals are often confused by who is a “necessary” party in a probate petition vs who is an interested party in a probate petition. This post will describe the differences and help you understand how to fill out your NYC forms properly.
Let’s use an example: Patricia’s mother, Dorothy, passed away in March 2018. Dorothy executed a Last Will and Testament (“Will”) prior to her death (Dorothy’s husband predeceased Dorothy). In Dorothy’s Will, Dorothy made general bequests of $10,000 to each of her two sisters, Ann and Joan, a specific bequest of her car to her brother, George, and a general bequest of $5,000 to her best friend, Agatha. Dorothy also named three of her children, Patricia, Rick, and Liz, as the beneficiaries of her residuary estate and nominated Patricia as her executor and Rick as her successor executor. Dorothy intentionally made no bequests to her daughter, Christine. Dorothy’s children all reside in New York State.
All the beneficiaries named under the will are still alive, and Patricia, as the nominated executor, is now preparing the petition to probate Dorothy’s will. Patricia knows that she is required to give notice of the Will to certain individuals. She also knows that certain individuals are necessary parties over whom she must acquire jurisdiction. However, she does not know what type of notice the individuals are entitled to and how to give such notice. What must Patricia do?
In the probate petition, there are two kinds of parties that are entitled to notice of the will and the probate proceeding. There are necessary parties and there are interested parties.
Necessary parties are the Executor and the people who would take in the absence of a Will. The people who would take in the absence of a Will are defined under Sections 4-1.1 and 4-1.2 of the Estates, Powers and Trust Law. They must be listed under paragraph 6 of the probate petition. The Surrogate’s Court must obtain jurisdiction over necessary parties, and therefore, these parties must be given notice of the proceeding and an opportunity to be heard in court and to object to the proceeding if they so desire.
Such necessary parties can be given notice either by serving a Citation on the party or by obtaining his or her signature on a “Waiver of Process; Consent to Probate”. The Citation informs the party of the pending probate proceeding and of the return date during which the party has the opportunity to appear in court and object to the probate of the will. If the party resides in the state of New York, he or she must be served in person. (If the process server, who must be over 18 and must not have an interest in the proceeding, is unable to serve that party in person, the petitioner can request that the court allow service in another manner.) If the party resides outside of New York State, he or she can be served by mail.
If a necessary party agrees to sign a waiver of process, he is waiving the issuance of the citation and consenting to the court’s admission of the will into probate.
Here, Patricia must name her mother’s children, which include Patricia and her three siblings, under Number 6 of the probate petition, since they are Dorothy’s next of kin. (Note that nominated executors must be included in Number 6 of the petition, regardless of whether they are the decedent’s next of kin. Of course, if the petitioner of the probate petition is the nominated executor, she does not need to serve herself.) Since her siblings reside in New York State, she would need to serve the citation on each of her siblings personally. However, if Patricia gets along with her siblings and her siblings do not plan to object to the will, Patricia should ask them to sign Waivers of Process; Consents to Probate.
It should be noted that the decedent’s next of kin are entitled to the same notice and opportunity to be heard, regardless of whether they are named in the will. Here, even though Dorothy did not name Christine as a beneficiary under her will, Christine is still entitled to be served a copy of the citation and has the right to object to the Will if she has reason to believe it should not be probated.
If the parties are willing to sign a waiver of process, the executor should send them each a waiver for them to sign. If any of the parties refuse to sign the waiver, the nominated executor should file the probate petition, signed waivers, and all supporting documents, including a citation, with the court. A court clerk will need to write the return date on the citation and sign the citation (otherwise known as “issuing the citation”), and then the executor must serve the citation on such named parties. If the necessary party is to be served in New York State, the citation must be served at least 10 days before the return date. If the necessary party is to be served elsewhere within the United States, the citation must be served at least 20 days before the return date. All other necessary parties, such as those located outside of the United States, must be served at least 30 days before the return date.
Note that whether the petitioner serves necessary parties by citation or obtains their signatures on waivers of process, the petitioner must serve a copy of the will on the necessary parties.
Interested parties are essentially those who benefit under the Will but would not take in the absence of a Will. Interested parties must be listed in paragraph 7 of the probate petition.
The nominated successor executors, nominated trustees, nominated guardians, and all of the beneficiaries under the will not named under Number 6 of the petition are interested parties (as opposed to necessary parties), who must be named under Number 7 of the petition. These fiduciaries and beneficiaries must be served by notice of probate. The notice of probate gives the interested parties notice of the will and the probate proceeding, but it does not require that these parties be given an opportunity to be heard. The notice of probate can be served by mail. While it is not required by law for the petitioner to serve a copy of the will on the interested parties named under paragraph 7, petitioners often do so out of courtesy to the interested parties.
Here, Dorothy’s sisters, Ann and Joan, her brother, George, and her friend, Agatha, are beneficiaries under the will, but they are not Dorothy’s next of kin. Therefore, Ann, Joan, George, and Agatha are only entitled to receive a notice of probate.
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