SURROGATE'S COURT PROCEDURE ACT, §§709, 1414, 2402(10)(iv):
Objections to the issuance of letters testamentary filed
pursuant to SCPA, §709 should not be considered a part of the
probate proceedings for purposes of fixing the filing fee
charged by a Surrogate's Court. Such objections are made in a
proceeding other than probate and the fee is properly fixed at
$60 pursuant to SCPA, §2402(10)(iv).
You have asked our opinion with respect to the appropriate fee to be charged by a Surrogate's Court upon the filing of an objection to the issuance of letters testamentary pursuant to section 709 of the Surrogate's Court Procedure Act (SCPA). You advise that presently the practice throughout the State is not uniform. Some courts, we understand, do not view such an objection as being part of the probate proceeding and, accordingly, fix the filing fee pursuant to SCPA, §2402(10)(iv), which section provides for a fee of $60 with respect to an "objection or answer in any action or proceeding other than probate." Other courts, however, consider an objection to the issuance of letters testamentary as an objection to the probate of a portion of the will pursuant to SCPA, §1410. As an objection pursuant to §1410, the fee is fixed at $120, as directed by SCPA, §2402(10)(ii).
In our opinion, the matter is properly resolved by examining the true nature of an objection made pursuant to section 709. Article 7, which includes section 709, contains general provisions pertaining to letters granted to all nature of fiduciaries. This article, therefore, is independent from the provisions of Article 14, which pertains solely to probate.
SCPA, §709, entitled, "Objection to grant of letters or appointment of lifetime trustee," provides:
As noted in Matter of Weinstock, 40 NY2d 1, 386 NYS2d 1, an objection of this nature does not involve the contention "that such undue influence was exercised on the decedent as to have vitiated the execution of the entire will." The contention is "narrower and of a different nature." The Weinstock court continues:
The Appellate Division, Third Department, has made the same distinction. In Matter of Estate of Krom, 86 AD2d 689, 446 NYS2d 522, the Court in considering the objectant's right to a jury trial, rejected the contention that an objection to the issuance of letters testamentary to an individual named as executor was part of the probate proceeding.
The court wrote:
The difference in the nature of objections properly filed pursuant to section 707 and those appropriate to section 1410 was again observed by the Second Department in Matter of Estate of Brumer, 69 AD2d 438, 419 NYS2d 155. In this instance, the court was concerned with the issue of whether the petitioner possessed sufficient interest to object to the issuance of letters to the person named in the will as executor. After finding the petitioner's interest insufficient to support an objection to probate pursuant to section 1410, the court reasoned the objections nonetheless could be entertained, noting in part:
Based on the above, we conclude that objections to the issuance of letters testamentary filed pursuant to SCPA, §709 should not be considered a part of the probate proceeding for purposes of fixing the filing fee charged by a Surrogate's Court. Consistent with the authorities cited, such objections are not deemed objections to probate, but rather are objections as to eligibility of a person to receive letters testamentary. Therefore, objections made in connection with this separate issue are to be determined after probate and the fee is properly fixed at $60 pursuant to SCPA, §2402(10)(iv).
October 30, 1991