When initiating proceedings in Surrogate’s Court, you must know how to serve a Surrogate Court Citation to ensure that all interested parties are given proper notice and an opportunity to be heard.
Section 307 of the Surrogate’s Court Procedure Act (SCPA) governs the methods of service for citations. Below is a step-by-step guide on how to properly serve a citation under SCPA 307.
1. Determine the Appropriate Method of how to Serve a Surrogate Court Citation
SCPA 307 outlines different methods of service based on the location and circumstances of the party being served:
- Personal Service: If a person resides within New York State, you must serve a Surrogate Court Citation by personal delivery at least ten (10) days before the return date of the Citation. Personal service is often effected using a licensed process server, who will serve a Surrogate’s Court Citation directly to the recipient. The process server must ensure that the individual personally receives the citation and should document the date, time, and manner of service in an affidavit.
- Substituted Service: If personal service is impractical, substituted service (delivering to another suitable person) or conspicuous service (affixing to the door and mailing) may be permitted.
PRACTICE TIP: You must first attempt personal service and then provide the Court with an affirmation explaining why personal service was not possible. The Affirmations should include affidavits of due diligence from the process server. You must also provide a proposed Order for Substitute Service along with the Supplemental Citation.
- Service by Mail: If authorized by the court, service may be completed by mailing the citation at least twenty (20) days before the return date. In addition, if the person resides outside of the state of New York but within the United States of America, then you can mail the citation via registered mail or certified mail return receipt requested, or by special mail service. If the person resides outside of the United States, then you must serve a Surrogate’s Court Citation at least thirty (30) days before the return date.
- Service by Publication: If a party’s whereabouts are unknown and cannot be ascertained with due diligence if the party is unknown, the court may order service by publication in a designated newspaper.
PRACTICE TIP: Before the Court will Order service of Citation by publication, they will require affirmation of due diligence which should comply with Surrogate’s Court rule 207.16(d).
2. Identify the Recipients
Service must be made upon all interested parties, which may include heirs, beneficiaries, fiduciaries, creditors, or other individuals with an interest in the estate. The petitioner should carefully review the court’s directives and any relevant estate documents to ensure all necessary parties are served.
3. Petitions that Require you to Serve a Surrogate Court Citation
Several types of petitions in Surrogate’s Court require service of a citation, including:
- Probate Proceedings: When seeking to admit a will to probate, interested parties such as distributees (heirs-at-law) must be served.
- Administration Proceedings: If there is no will, a petition for administration of the estate requires service upon heirs and other interested parties.
- Accounting Proceedings: Fiduciaries must serve citations when seeking judicial settlement of an estate’s final accounting.
- Guardianship Proceedings: When appointing a guardian for a minor or incapacitated person, citations must be served to those with an interest in the proceeding.
- Will Construction Proceedings: When there is ambiguity in a Last Will, all interested parties must be cited to participate in the interpretation process.
4. Effectuate Proper Service
- Personal service should be made by an individual over 18 years old who is not a party to the proceeding. If using a process server, ensure they are properly licensed and follow all legal protocols for service.
- When using substituted service, ensure compliance with statutory requirements for delivery and follow-up mailing.
- If service by mail is permitted, use certified or registered mail, return receipt requested.
- For service by publication, adhere to the court’s order specifying the newspaper, frequency, and duration of publication.
5. File Proof of Service when you Serve a Surrogate Court Citation
Once service is completed, the petitioner must file an affidavit of service with the Surrogate’s Court. This affidavit should include details of when, where, and how service was made, along with any required supporting documentation (e.g., postal receipts, process server affidavit, or proof of publication).
6. Address Any Service Issues
If service is challenged or deemed insufficient, the court may require additional steps to perfect service. In such cases, consult with an attorney or seek further guidance from the Surrogate’s Court to ensure compliance with all procedural requirements.
Conclusion
Knowing how to properly serve a Surrogate Court Citation under SCPA 307 is a critical step in Surrogate’s Court proceedings. Following the prescribed methods and timelines ensures due process and avoids unnecessary delays. Petitioners should carefully review the statute, follow court instructions, and maintain proper documentation to demonstrate compliance with service requirements.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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