🔑 Sample New York Probate Petition

§ 304. Contents of petition

In addition to such other requirements as may be applicable to the petition in a particular proceeding, a petition must substantially set forth:

1. The title of the proceeding, the name and domicile of the person to whose estate or person the proceeding relates and of the petitioner.

2. The facts upon which the jurisdiction of the court depends in the particular proceeding.

3. So far as they can be ascertained with due diligence, the names and addresses of all the persons interested upon whom service of process is required or concerning whom the court is required to have information; and in addition there shall be shown by petition or affidavit in form satisfactory to the court, the following:

(a) If any person be an infant, his age, the date of his birth, whether he has a guardian, whether his father, or if he be dead, his mother, is living, his connection with the estate, and the names and addresses of such persons and the person with whom the infant resides.

(b) If any person be an incompetent, the name and address of his committee, if any, and of the person or institution having his care and custody and if there be no committee, the name and address of an adult relative or friend having an interest in his welfare.

(c) If any person be an incapacitated person, the facts regarding his incapacity and if confined, the name and address of the institution having his care and custody and the name and address of an adult relative or friend having an interest in his welfare, and if a conservatee as designated in section 77.01 of the mental hygiene law, the name and address of his conservator.

(d) If any person be unknown or his name or whereabouts be unknown, a general description of such person, showing his connection with the estate and his interest in the proceeding and the facts showing what effort has been made to ascertain his name or whereabouts.

(e) If any person be a prisoner confined in this state or elsewhere, the name and address of the institution in which he is confined, and the name and address of an adult relative or friend having an interest in his welfare.

(f) If any person be included in a class, and his name be unknown, the names and addresses of those persons of the class who are known, and a general description of all other persons belonging to the class, their connection with the estate, and their interest in the proceeding.

4. That there are no other persons than those mentioned interested in the application or proceeding.

5. A request for the relief sought.

Section 207.16 Petitions for probate and administration; proof of distribution; family tree.

(a) All petitions for probate or administration shall:

(1) contain the information required by SCPA 304;

(2) contain an estimate of the gross estate of the decedent passing by will or intestacy, separately showing the values of personal and real property, gross rents for a period of 18 months and information about any cause of action for personal injury or wrongful death; and

(3) indicate whether any distributee is a non-marital child or the issue of a non-marital person under EPTL 4-1.2(a)(1) or (2).

(b) Whenever, in a petition for probate or administration, a party upon whom the service of process is required is a distributee whose relationship to decedent is derived through another person who is deceased, the petition must either:

(1) show the relationship of the distributee to decedent and the name and relationship of each person through whom such distributee claims to be related to decedent; or

(2) have annexed a family tree table or diagram showing the name, relationship and date of death of each person through whom such distributee claims to be related to the decedent, which table or diagram shall be supported by an affidavit of a person having knowledge of the contents thereof.

(c) If the petitioner alleges that the decedent was survived by no distributee or only one distributee, or where the relationship of distributees to the decedent is grandparents, aunts, uncles, first cousins or first cousins once removed, proof must be submitted to establish:

(1) how each such distributee is related to the decedent; and (2) that no other persons of the same or a nearer degree of relationship survived the decedent.

Unless otherwise allowed by the court, the proof submitted pursuant to this subdivision must be by an affidavit or testimony of a disinterested person. Unless otherwise allowed by the court, if only one distributee survived the decedent, proof may not be given by the spouse or children of the distributee. The proof shall include as an exhibit a family tree, table or diagram, except no such table or diagram shall be required if the distributee is the spouse or only child of the decedent.

(d) If the petitioner alleges that any of the distributees of the decedent or others required to be cited are unknown or that the names and addresses of some persons who are or may be distributees are unknown, petitioner must submit an affidavit showing that he or she has used due diligence in endeavoring to ascertain the identity, names and addresses of all such persons. Compliance with this due diligence requirement is not intended to burden the estate with costly or overly time-consuming searches. Absent special circumstances, the affidavit will be deemed to satisfy the requirement of due diligence if it indicates the results obtained from among the following:

(1) examination of decedent's personal effects, including address books;

(2) inquiry of decedent's relatives, neighbors, friends, former business associates and employers, the post office and financial institutions;

(3) correspondence to the last known address of any missing distributees;

(4) correspondence or telephone calls to, or internet search for, persons of same or similar name in the area where the person being sought lived;

(5) examination of the records of the Motor Vehicle Bureau and Board of Elections of the state or county of the last-known address of the person whose whereabouts is unknown.

In probate proceedings, the court may accept, in lieu of the above, an affidavit by decedent setting forth the efforts that he or she made to ascertain relatives.

(e) If a person requesting letters to administer an estate as sole executor or administrator is also an attorney admitted in this State, he or she shall file with the petition requesting letters a statement disclosing:

(1) that the fiduciary is an attorney;

(2) whether the fiduciary or the law firm with which he or she is affiliated will act as counsel; and

(3) if applicable, that the fiduciary was the draftsperson of a will offered for probate with respect to that estate. Historical Note Sec. filed Jan. 9, 1986; amds. filed: Jan. 12, 1998; April 1, 1998; Oct 5, 2000 eff. Oct. 3, 2000. Amended (d).