Matter of Proios

[*1] Matter of Proios 2012 NY Slip Op 52243(U) Decided on November 29, 2012 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 29, 2012
Sur Ct, Nassau County

In the Matter of the Probate of the Last Will and Testament of Helen Proios, Deceased.



2010-363032



Joseph D. Meares, P.C.(for Petitioner, Nina Brown, nominated successor executor)

320 Conklin Street

Farmingdale, NY 11735

Russo, Karl, Widmaier & Cordano(for nominated executor, Michael Proios)

400 Town Line Road

Suite 170

Hauppauge, NY 11788

Edward W. McCarty, J.

In this proceeding to probate the will of a non-domiciliary, the decedent Helen Proios was survived by her three adult children: Nina Brown, Michael Proios, and Thomas Proios, as her only distributees. The petitioner is Nina Brown, the nominated successor executor. Michael Proios, the nominated executor, moves for an order dismissing the proceeding for lack of subject matter jurisdiction, contending that the decedent was not a domiciliary of New York and that she left no property in this state.

The petitioner concedes that in July 2004 decedent permanently relocated from New York to Colorado, where she resided with petitioner until her death July 19, 2010. Petitioner contends, however, that the decedent left a cause of action in New York sufficient to confer jurisdiction on this court.

There is currently pending in this court an accounting proceeding in which Michael Proios is accounting as trustee of the decedent's irrevocable lifetime trust. Nina Brown has filed objections to the accounting. Although it is not entirely clear from the papers submitted, it does not appear that the decedent's residence, her primary asset, or the proceeds of its sale were ever transferred to the trust. Petitioner contends that Michael, as decedent's attorney-in-fact, sold the decedent's former residence for $550,000.00 and that he asserts that the decedent gifted all or most of the proceeds to him. Nina argues, therefore, that the estate has a cause of action against Michael for the return of the proceeds of sale. She avers that she will commence an SCPA 2103 discovery proceeding against Michael upon the will's admission to probate either as executor, or, if Michael should demand the issuance of letters testamentary to him as the nominated executor, [*2]then she intends to seek the issuance of limited letters of administration for the purpose of commencing and maintaining the discovery proceeding.

SCPA 1605 authorizes the original probate in this state of the will of a non-domiciliary decedent. As relevant to this case, SCPA 206 provides that the Surrogate's Court of any county has jurisdiction over the estate of any non-domiciliary who leaves property in this state. The proper venue for such a proceeding is the county where the non-domiciliary decedent left property or where personal property belonging to the decedent has, since his or her death, come into and remains unadministered. Property is defined as anything that may be the subject of ownership and is real or personal property or is a chose in action (SCPA 103[44]).

Here, the decedent's will was not offered for probate in her domicile state of Colorado because she left no probate assets there. The court is therefore satisfied that this is a proper case for the original probate of the will of the non-domiciliary decedent (SCPA 1605). The property representing the proceeds of the sale of the decedent's residence, or at least a portion thereof, are on deposit in an institution in this county where they are subject to a restraining order issued by this court incident to the trustee's accounting proceeding. The cause of action on behalf of the decedent's estate for the return of those funds is property situate in this state and this county and this court therefore has subject matter jurisdiction for the original probate of the decedent's will (see Matter of Sbuttoni, 16 AD3d 693 [2d Dept 2005]).

The motion to dismiss the proceeding is therefore denied. This matter will appear on the court's calendar for conference on December 12, 2012 at 9:30 a.m.

This decision constitutes the order of the court and no additional order need be submitted.

Dated: November 29, 2012

EDWARD W. McCARTY III

Judge of the

Surrogate's Court