Update On New York State Courts During COVID Regarding Probate & Estate Litigation

Daniel R. Antonelli
Representing trust & estate clients with an emphasis on estate litigation in the New York City Metro Area.
The coronavirus pandemic has wreaked havoc on nearly all areas of New York life, and the court system is no exception. Nevertheless, courts provide truly essential services and the the New York State Court System is striving to make the courts available as needed while limiting the health risk to judges, staff, jurors, litigants, and the public.

What does this mean for those involved in the probate or administration of a loved one’s estate?

When it comes to Surrogate’s Court there are several issues that stand out including the limitations on what applications or petitions may be filed, the implementation of electronic filing and virtual appearances, and the changing time frames and expectations one should have when entering Surrogate’s Court.

Is Surrogate’s Court Open?

The Surrogate’s Courts in every county in New York State are open. Depending on which county you’re located in, your experience will be different. Most upstate regions are further along in the reopening process. Downstate, the volume of people and cases has delayed the reopening process, especially in New York City. However, the Surrogate’s Courts within the City’s five counties are all open and accepting certain types of petitions, which is the foucs of this article.

Applications on Consent – Where Everyone Agrees to Your Request

If you’re trying to probate a will or appoint an administrator and all necessary parties (typically all the heirs or those adversely affected by a will) indicate their consent in writing, then your application should be processed. If your paperwork is in proper order, then the Surrogate should grant your request (e.g. a representative appointed for the estate).

Essential Applications

In many cases, there’s at least one person who won’t consent to the relief you’re requesting. Or maybe they can’t consent because they’re a minor, missing, or under another “disability.” In other cases, the nature of the proceeding is adversarial. Perhaps you’re trying to force an executor to file an accounting or trying to remove the executor from their position. These cases are more difficult to get processed.

However, all counties are accepting essential or emergency applications. What qualifies as essential or emergency is specific to each case. Cases of fiduciary misconduct, such as stealing from the estate or causing waste, have a very good chance of being heard by the Surrogate because these are examples of serious misconduct that could cause major, and possibly irreversible, harm to the estate.
 
A clear example of an essential matter is a dispute over the disposition of the decedent’s remains. In August 2020, we represented a client in this type of matter. We applied to the court on an emergency basis—the decedent’s body was held in a funeral home and deteriorating; our client wanted an autopsy because he suspected the death was caused by medical malpractice (autopsies should generally be performed within 72 hours of death); and DNA evidence needed to be obtained to prove that our client, a non-marital child, was in fact the biological child. Other parties opposed these goals. The judge called us in for a hearing via video conference and granted our request by issuing an order directing the funeral home to turn over the body to a pathologist to conduct the autopsy and collect DNA samples.

When it comes to probate and administration applications, several Surrogates are willing to grant preliminary or temporary authority where there is a delay and an urgency. For example, where the decedent left real estate and no one has authority to manage the property, some Surrogates have appointed a temporary representative with limited authority to manage the estate.

Surrogate’s Court Has Gone Electronic and Virtual

The Surrogate's Courts have implemented efiling throughout the state. This was a major technological advancement considering that Queens was the only county in New York City with efiling capability prior to the pandemic. Efiling is mandatory for attorneys and optional for self-represented individuals.

In-person access to the courthouses is extremely limited. Virtual court appearances have been introduced. In New York City, if a case was pending prior to the pandemic, many courts are holding conferences via Skype for Business but are transitioning to Microsoft Teams. Outside NYC, non-essential motions, hearings, and trials are being conducted. Our firm has not experienced any virtual appearances within the City other than emergency cases. However, we anticipate that virtual appearances will become more widespread as judges and staff are increasingly trained to use the technology.

How Long Will It Take to Probate a Will?

In normal times, Surrogate’s Court attorneys tend to view this question as a very difficult one. Amid the coronvirus pandemic, it’s a quesiton that is impossible to answer with any certainty. We can only look to our experience over the past months. A broad discussion of How Long Does Probate Take? is also available.

Expectations in Normal Times

Processing times largely depend on how quickly clients and third parties provide necessary information. We are generally able to draft and file an application for probate or adminisration together in a matter of weeks, but once the application is filed, it’s in the court’s hands. New York City courts see a huge volume of cases, which causes any individual case to take a long time. In normal times, depending on the county, a straight-forward probate or administration petition could be granted within a few weeks to a few months. Certain issues cause delays. If a dispute arises, then all bets are off when it comes to predicting a time frame for resolution.

Expectations in the COVID Era

At this relatively early stage in the courts’ reopening, it would be unwise to predict how long it will take the courts to process a probate or administration application. Much depends on the county and the type of filing. We’ve filed COVID era petitions that took anywhere from a few weeks to a few months to be granted, while other petitions have been sitting for a few months with no end in sight. It’s important to remember that the courts are stressed as much as everyone else. Patience is key.
 
Our strategy is to file petitions as quickly as possible, follow up regularly with the courts, and maintain strong relationships with the judges and court staff. We feel that, while the process may still be lengthy, this strategy will get the job done as quickly as possible.

What Can I Expect from Antonelli & Antonelli?

We keep our clients updated in real-time through various media. You can access tips on communication with our firm and ongoing updates regarding how we are operating during COVID here. You can also follow us on Facebook and on LinkedIn to stay up-to-date.

Access to Evolving Protocols

Antonelli & Antonelli is heavily invested in the legal community. Our attorneys sit on committees of various bar associations which provide insight into the inner workings of the Surrogate’s Courts and of the New York State court system. We receive regular updates from the State’s Chief Judge and Chief Administrative Judge. This broad network gives us access to changing procedures as they evolve, and we use that information to provide the best possible service to our clients.

Access to court files

We often begin representing a client in the middle of a court proceeding and must review the court file as part of our investigation. While the courts have limited in-person accessibility, we’re able to access court files by digital means where available. Where digital access is unavailable, copies of court files can be ordered in hard copy.

Efiling

Efiling technology is difficult for many. For us, it’s second nature. Our attorneys are trained for efiling in both Surrogate’s Court and Supreme Court, and we utilize this technology to enhance our practice.

Looking Ahead

The next steps in the reopening of the courts in New York City are uncertain, but we can look to the procedures of various counties that are further along in the reopening process for guidance. Many upstate counties are regularly using video conference technology for virtual court appearances, and some have in-person access. The virtual model has spread downstate but is understandably taking a bit longer in New York City. Nevertheless, progress is being made.

For example, at least one county in NYC is issuing citations (notice to interested parties to come to court) in certain non-essential matters. A new notice regarding virtual appearances must be served with the citation. Parties may then object to the petition in writing and appear virtually if necessary.

We expect this practice to become increasingly prevalent in the Surrogate’s Courts throughout New York City. Regardless of the circumstances, our message to clients is that we’re right there with you doing everything we can to get your matter resolved.

Contact Us to Discuss Your Estate Issue

If you would like to discuss how your estate issue may be affected by the evolving protocols, please contact us for a free consultation.