Matter of Searles

[*1] Matter of Searles 2014 NY Slip Op 51713(U) Decided on December 9, 2014 Sur Ct, Erie County Howe, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2014
Sur Ct, Erie County

In the Matter of the Estate of Fred Searles, a/k/a FRED SEARLES, SR., Deceased.



2014-4879



FIORELLA & SCHWIND, LLP

Attorney for the Petitioner

Peter J. Fiorella, III, Esq., of Counsel
Barbara Howe, J.

Decedent died intestate on October 13, 2014 at the age of 73. Pending now before me is an application pursuant to SCPA article 13 with respect to the administration of decedent's estate. The application has been filed by Frederick Searles, Jr., [hereafter, Frederick], listed on the application as a "non-marital son [and] 1/3 distributee." The application also lists two other individuals: Keysha Searles and Melanie Bell, each stated to be a non-marital daughter of decedent's and each also listed as a 1/3 distributee of the estate.

After initial review of the application, petitioner's attorney was requested to supply proof pursuant to EPTL 4-1.2, establishing that decedent was Frederick's father. In response, Frederick's attorney took the position that such proof was not required at this stage of the proceedings. As counsel put it:

"From my review of EPTL §4-1.2, this section applies to an inheritance by non-marital children and not standing to file a voluntary administration affidavit which is governed by SCPA §1303 as the affiant, Frederick Searles, Jr., is a person who may become a voluntary administrator given that he is in fact a child of the decedent as I did not list him as an alleged non-marital child.

EPTL §4-1.2 does not restrict Mr. Searles in becoming a Voluntary Administrator as it deals with his right to inherit from the estate which would then be subject to an heirship proceeding after the filing of a Judicial Settlement petition."[FN1]

Based on the foregoing, counsel has requested that this Court "[r]econsider the plain language of both EPTL §4-1.2 right to inherit and SCPA §1303 for his appointment."

SCPA 1303(a) provides, insofar as relevant here, as follows:

"If the deceased dies intestate, the right to act as a voluntary administrator is hereby given first to the surviving adult spouse, if any, of the decedent and if there be none or if the spouse renounce, then in order to a competent adult who is a child or grandchild, parent, brother or sister, niece or nephew or aunt or uncle of the decedent, or if there be no such person who will act, then to the guardian of the property of an infant, the committee of the property of any incompetent person or the conservator of the property of a conservatee who is a distributee and if none of the foregoing named persons will act or if there are no known distributees within the categories listed above, then to the chief fiscal officer of the county except in those counties in which a public administrator has been appointed under articles eleven and twelve of this act. After the surviving spouse, the first distributee within the class of persons entitled or if no distributee will act or there are no known distributees within the class of persons entitled, then the chief fiscal officer of the county as above who makes and files the required affidavit, is authorized to act as voluntary administrator, or as successor voluntary administrator in the event of the death or resignation of the voluntary administrator before the completion of the settlement of the estate" (emphasis added).

Both case law and treatises construing the foregoing statute make clear that SCPA 1303(a) requires that only a "distributee" is eligible to serve as voluntary administrator of an estate. SCPA 103[14] defines a "distributee" as "any person entitled to take or share in the property of a decedent under the statutes governing descent and distribution."

For example, in Matter of Armstrong, 95 Misc 2d 406, 407 [1978], Nassau Surrogate Judge Bennett analyzed the statute as follows:

"SCPA 1303 does not initially provide as does SCPA 1001 that a person must be a distributee in order to act as voluntary administrator. However, a later clause following the list of eligible candidates provides as follows: or if there are no known distributees within the categories listed above, then to the chief fiscal officer of the county'. (Italics supplied.) Similarly, the second sentence of SCPA 1303 (subd [a]) reads: After the surviving spouse, the first distributee within the class of persons entitled * * * is authorized to act as voluntary administrator'. (Italics supplied.) It is clear from this language that a voluntary administrator is required to be a distributee in order to qualify" (emphasis added).

Similarly, the Warren's Heaton treatise on Surrogate's Court Practice points out that:

"Except in the case of the public administrator, the voluntary administrator of the small estate of a decedent who has died intestate must be a distributee of decedent, or in certain cases the representee of a distributee.

• • •

However, a careless reading of SCPA 1303(a) may mislead one into believing that one who is not a distributee may qualify as a voluntary administrator. This is not so. The voluntary administrator, except in certain limited situations, must be a distributee" (2 Warren's Heaton, Surrogate's Court Practice §37.05[2][a] at 37-17 [7th ed 2006], emphasis added; see also, Tarano and Radigan, New York Estate Administration, §8.02, at 313 [2014 ed]).

As is clear from the foregoing, the interpretation of the statutes at issue advanced by Frederick in this case is unavailing. Therefore, Frederick must establish his status as a distributee of decedent's pursuant to EPTL 4-1.2(a)(2) before he can be appointed voluntary administrator of this estate, and, until he does so, there can be no further consideration of his application.

This decision shall constitute the Order of this Court in this matter and no other or further order shall be required.

DATED:BUFFALO, NEW YORK

December 9, 2014

__________________________________

HON. BARBARA HOWE

Surrogate Judge

Footnotes

Footnote 1:Contrary to counsel's assertion, the SCPA article 13 application lists Frederick as a non-marital child under paragraph 6. Under paragraph 2, Frederick states that his "interest" in decedent's estate "is: Distributee of decedent son".