Surrogate Court Petition NY - What County

Question

FOR NEW YORK STATE If you need to submit a petition to the surrogate court for executor purposes, what County? I was told the county that the person passed away in and issued the death certificate, is the county you submit papers to for the surrogate court?

Answer 1

Usually, it is the county where the decedent was domiciled at death. Domicile is where someone resided with an intent to remain at the location indefinitely. For someone who just moved into a new house or apartment, a change in domicile could arise in as little as one day, there isn't a fixed number of days of residency requirement. It doesn't have a bureaucratic requirement of registration to vote or with the DMV or anything like that.

A hospital or workplace isn't itself a domicile in most cases. A nursing home is only a domicile is the person who is staying there has no intent to return to another residence. Usually, if the person in a nursing home or their spouse owns a home or has a residential apartment lease, despite being in a nursing home, the home or apartment, rather than the nursing home, will be their domicile for surrogate's court venue purposes.

There are exceptions in cases where the decedent owned property located in the state, such as real property titled in the name of the decedent which is not in joint tenancy, that has to be administered through the probate process, but was not domiciled in the state. Then, it is any county in which New York State property subject to the probate process in New York State is located.

Generally speaking, the actual place of death (often a hospital or perhaps a place someone was traveling at the time of death) isn't relevant to Surrogate's Court venue. Place of death is generally a basis for venue only in the absence of any other known domicile of the decedent.

The death certificate will often contain the county in which the death certificate informant stated that decedent was domiciled at death, but that determination while providing evidence sufficient to establish domicile, isn't binding on the Surrogate's Court if that venue is disputed with other evidence.

Sometimes, it is also possible to waive objections to an allegedly improper venues, by express consent, or due to a procedural default, usually for the convenience of the lawyers involved. There is also a special 9-11 provision.

The primary statute (which doesn't cover all of the exception cases and instead just states the general rule), is the New York Surrogate's Court Procedure Act § 205. (Domiciliaries; jurisdiction and venue), which reads as follows:

1. The surrogate's court of any county has jurisdiction over the estate of a decedent who was a domiciliary of the state at the time of his death, disappearance or internment.  The proper venue for proceedings relating to such estates is the county of the decedent's domicile at the time of his death, disappearance or internment.

2. A surrogate shall transfer any proceeding to the surrogate's court of the proper county either on his own motion or on the motion of any party.

3. Notwithstanding the foregoing provisions of this section, the surrogate's court of any county has jurisdiction over, and is a proper venue for, the proceedings of any decedent who was a domiciliary of the state at the time of his or her death and who died as a result of wounds or injury incurred as a result of the terrorist attacks on September eleventh, two thousand one.