Opinion 89-49


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


FEES -- Court Fees (in proceeding for appointment of administrator c.t.a. or d.b.n., or successor executor)

SURROGATE'S COURT PROCEDURE ACT, §2402: In a proceeding for the appointment of an administrator c.t.a. or d.b.n., or a successor executor as substitute for a previously named fiduciary, a fee is properly charged pursuant to SCPA, §2402(7), based on the value of the subject matter of the proceeding. Since, in such a proceeding, there is no actual monetary value, the fee charged would be $27.00.

This is in reply to your inquiry concerning the imposition of fees by a Surrogate's Court. Specifically, you ask whether a fee is properly imposed pursuant to subdivision 1 or 2 of section 2402 of the Surrogate's Court Procedure Act (SCPA) based on the value of unadministered estate assets when a proceeding is brought for the appointment of an administrator c.t.a., administrator d.b.n. or a successor executor. In the event that SCPA 2402(1) and (2) are not applicable, you ask if a fee must be imposed pursuant to SCPA, §§2402(7) and (8), which set forth a schedule of fees for proceedings where no specific fee is otherwise provided. You state that presently the practice throughout the State is not uniform. Some courts impose fees in proceedings for the appointment of these fiduciaries as successors. Other courts do not, reasoning that such proceedings are supplemental to the original probate or administration proceedings and that, accordingly, payment of a separate fee is not required.

Article 14 of the SCPA provides generally for the probate of wills and the appointment of executors and, when necessary, their substitutes or successors. More particularly, SCPA, §1418 provides for the appointment of an administrator c.t.a. (issuance of letters of administration with the will annexed) when no person or an ineligible person is named in a will to act as executor or where the named executor cannot or will not perform. Similarly, in cases of intestacy, SCPA, §1007 provides for the appointment of an administrator d.b.n. ("administrator de bonis non") when the office of administrator becomes vacant for any reason.

What is common to administrators c.t.a., administrators d.b.n. and successor executors is that all three may be appointed after the commencement of the original probate or administration proceeding. To the extent that they are appointed as substitutes for the preceding fiduciaries in these proceedings, they participate in the continuation of the original proceedings rather than in the commencement of new proceedings.

SCPA, §§2402(1) and 2402(2), respectively, relate to the fee schedule for the filing of petitions to "commence a proceeding for probate of a will" and to "commence a proceeding for administration in intestacy" (emphasis supplied). If the appointment of an administrator c.t.a. is sought at the time the will is offered for probate, the petition seeking commencement of the probate proceeding would include the request for the appointment of the administrator c.t.a. as the original fiduciary, and a fee provided by SCPA, §2401(1) would be chargeable. However, in our opinion, because of the clear statutory language, the fees directed by these subdivisions do not apply to a proceeding brought for the appointment of administrators c.t.a, administrators d.b.n. or successor executors as substitutes for previously named fiduciaries. In petitioning for the appointment of a successor estate fiduciary, the relief sought is not commencement of probate or administration proceedings, and the language of the statute must control.

Having concluded that fees are not properly imposed pursuant to subdivisions 1 or 2 of section 2402, we note that none of the other proceedings for which a fee is specifically prescribed by section 2402 encompass the appointment of an administrator c.t.a., administrator d.b.n. or a successor executor. Moreover, subdivision 17 of 2402, which expressly exempts certain enumerated proceedings from the imposition of a fee, does not have any application to these proceedings. Therefore, we must consider the applicability of subdivision 7 which, as stated, relates to fees for proceedings where no specific fee is otherwise provided. Specifically, SCPA, §2402(7) provides: "In proceedings not otherwise provided in this act the fee shall be according to the following schedule based on the value of the subject matter."

A proceeding commenced in Surrogate's Court for the appointment of an administrator c.t.a, an administrator d.b.n. or a successor executor is, like the other proceedings specifically referred to in various subdivisions of section 2402, a separate special proceeding. We do not believe, as has been suggested, that it is a continuation of the original probate or administration proceeding. It is commenced independently by the filing of a petition and personal jurisdiction upon interested parties is obtained by the service of process (see, SCPA, §§203, 1418, 1007 and 1414; see also, Goldman, Practice Commentaries, McKinney's Cons. Laws of NY, Book 58A, SCPA, §1414, p 355, noting that although SCPA, §1414 does not prescribe the method for obtaining letters testamentary as a successor or substitute executor, the former practice continues and, "[i]f no proceeding is then pending, the person nominated as successor executor must petition for the issuance of his letters").

Since no specific fee is provided, and since a proceeding for the appointment of an administrator c.t.a. or d.b.n. or a successor executor is not one of those proceedings specifically exempted from fees pursuant to subdivision 17 of section 2402, we are compelled to conclude that subdivision 7 is applicable. Therefore, it is our view that a fee is properly charged pursuant to SCPA, §2402(7). According to that statute, this fee shall be based on the value of the subject matter of the proceeding.

In a proceeding for the appointment of a successor estate fiduciary, the value of the subject matter is not the value of the unadministered assets, as is the case in other proceedings, such as those brought to commence probate or administration (SCPA, §§2402[1], [2]). Rather, the relief sought in a proceeding for the appointment of a successor fiduciary is limited and specific. Further, the subject matter of the proceeding has no actual monetary value. Therefore, we conclude that, pursuant to the terms of the fee schedule contained in the statute (SCPA, §2402[8]), the value is "less than $10,000," resulting in a fee to be charged in proceedings for the appointment of a successor fiduciary in the amount of $27.00.

In our view, this result is compelled by application of clear statutory language. This result is also consistent with the more definite fee provisions contained in section 2402(9). We note that subdivision prescribes relatively small fixed fees for proceedings which, like those considered here, are incidental in nature. In this connection we observe that, pursuant to SCPA, §2402(9), a fee of $27.00 is also chargeable on a comparable proceeding brought for the appointment of a trustee.

November 27, 1989
Michael Colodner, Counsel
State of New York Unified Court System