NY SCPA 1403: Persons to Be Served; Content of Process

SCPA 1403 governs who must be served with process in a proceeding for the probate of a will, and what information the probate process must contain. The statute identifies required recipients of process based on their relationship to the testator, the propounded will, and any other instruments that may affect their rights or interests.

The Statutory Rule

§ 1403. Persons to be served; content of process.

1. In a proceeding for the probate of a will process must issue to the following persons if not petitioners:

(a) The distributees of the testator.

(b) The person or persons designated in the will as executor except that a person designated in the will as substitute or successor executor in the event the designated executor cannot act or fails to qualify need not be served where the designated executor is under no disability.

(c) Any person designated in the will as beneficiary, executor, trustee or guardian, whose rights or interests are adversely affected by any other instrument offered for probate that is later in date of execution or which amends or modifies an instrument offered for probate.

(d) Any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate’s court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate.

(e) If the propounded will expressly refers to an instrument which created a power of appointment and purports to exercise such power of appointment, any persons designated in the instrument that created such power of appointment whose rights or interests are adversely affected by the instrument offered for probate.

(f) The testator in any case where the petition alleges that the testator is believed to be dead.

(g) The state tax commission in the case of a non-domiciliary testator.

(h) Where any person to whom process is required to be issued has died, process shall issue to his fiduciary and if none has been appointed, to all persons interested as distributees, nominated fiduciaries or named as legatees or devisees under any will of the deceased filed in the court.

(i) The provisions of section three hundred fifteen shall apply to a proceeding under this section.

2. The process must set forth the name of the proponent and if the will is nuncupative, that fact.

What the Statute Does

Core Function of SCPA 1403

SCPA 1403 determines who must receive notice of a probate proceeding and ensures that persons whose rights or interests may be affected by the admission of a will to probate are brought before the court.

The statute operates as a due-process mechanism within probate proceedings.

Required Service on Distributees and Executors

Subdivision (1)(a) requires service on the distributees of the testator if they are not petitioners.

Subdivision (1)(b) requires service on persons designated in the will as executor, with a specific limitation: a substitute or successor executor need not be served if the primary designated executor is under no disability.

Service Based on Adverse Effect of Other Instruments

Key Point: Subdivisions (1)(c) and (1)(d) focus on whether a person’s rights or interests are adversely affected by the instrument offered for probate.

These provisions extend required service to persons named in:

• a later-dated instrument offered for probate that amends or modifies an earlier instrument, and
• any other will of the same testator filed in the same Surrogate’s Court.

The triggering condition is not merely designation in another instrument, but adverse effect.

Powers of Appointment

Subdivision (1)(e) requires service on persons designated in an instrument creating a power of appointment when:

• the propounded will expressly refers to that instrument, and
• purports to exercise the power, and
• the persons’ rights or interests are adversely affected.

This provision ties service obligations to the interaction between the will and the power-creating instrument.

Special and Contingent Cases

Subdivision (1)(f) requires service on the testator when the petition alleges the testator is believed to be dead.

Subdivision (1)(g) requires service on the state tax commission in the case of a non-domiciliary testator.

Subdivision (1)(h) addresses situations where a required recipient has died, directing service to the deceased person’s fiduciary or, if none exists, to specified interested persons.

Subdivision (1)(i) incorporates the service provisions of SCPA 315 into proceedings under this section.

Content of the Probate Process

Subdivision (2) governs what the process itself must state:

• the name of the proponent, and
• if the will is nuncupative, that fact.

The statute does not otherwise specify form or content beyond these requirements.

What the Statute Does Not Resolve

Note: SCPA 1403 identifies who must be served and what the process must contain. It does not determine:

• standing to object,
• the merits of any objection,
• whether service defects may be cured, or
• the substantive validity of the will.

Those questions arise under other provisions of law.