Opinion 91-47


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (filing of an objection to the issuance of letters testamentary)

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:

Any person interested, before letters are granted to a fiduciary or the surrogate's court appoints a trustee of a lifetime trust, may file objections showing his interest in the estate and stating one or more legal objections to granting the letters to or the appointment of one or more of the persons about to receive them or to be appointed. Where such objections are filed the court may stay the granting of letters to or the appointment of the person against whom the objection is made until the matter is determined.

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:

It is not asserted that a will may be struck down in part or that the courts may excise one particular provision. By contrast it is urged that while this will has been properly admitted to probate in its entirety, [the nominated executors] cannot be [granted letters testamentary]. (40 NY2d at 6, 386 NYS2d at 3)

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 distinction between objections relating to the admission of the will to probate and those relating only to the eligibility of the person named in the will to serve as executor is an important one (see Matter of Weinstock, 40 NY2d 1). Provisions relating to a person's eligibility to receive letters (SCPA 707) and objections to the grant thereof (SCPA 709) are contained in a separate and distinct article (SCPA art 7) from that containing the provisions relating to probate proceedings (SCPA art 14), and the objections to petitioner's eligibility to receive letters testamentary clearly do not raise factual issues relevant to the admissibility of the will to probate (see SCPA 1408). Moreover, petitioner's eligibility to receive letters testamentary as the executor named in the will is not relevant unless the will is admitted to probate (SCPA 1414, subd 1). (86 AD2d at 689, 446 NYS2d at 523)

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:

From the nature of the objection asserted here, it is clear that the objectant's position has a basis in SCPA 709, which provides that any person interested in a decedent's estate may file objections to the grant of letters upon stating his or her interest and legal objections thereto. (69 AD2d at 440, 419 NYS2d at 156)

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
Michael Colodner
New York State Unified Court System