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Warren's Heaton on Surrogate's Court Practice
Copyright 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

9-122 Warren's Heaton on Surrogate's Court Practice 122.syn


Actions by or Against Legal Representative


Linda B. Hirschon, Greenberg Traurig, New York;Andrew L. Martin, Esq. Chief Court Attorney--Referee, Surrogate's Court, Nassau County;Eugene E. Peckham, Surrogate, Broome County;C. Raymond Radigan, Chairman, EPTL-SCPA Legislative Advisory Committee;Joshua S. Rubenstein;Peter N. Wells, former Surrogate, Onondaga County;* Chapter 122 was revised by Ilene S. Cooper, Esq.

Chapter Summary


A decedent's estate in New York can sue and be sued through its legal representative. Under EPTL 11-3, actions brought by or against a decedent's estate must be brought by or against the executor or administrator of the estate in his or her fiduciary capacity. However, actions are sometimes also brought against the personal representative of an estate in an individual capacity. This chapter, from Warren's Heaton on Surrogate's Court Practice (Matthew Bender), covers actions by or against a personal representative as a fiduciary; individual liability of representatives; procedural aspects of these actions; the right of a legal representative to bring in counsel; and suits by foreign representatives on behalf of nondomiciliary decedents.

The chapter first reviews cases where personal representatives have brought actions under EPTL 11-3.1, including the case of In re Piccione, where the Court of Appeals clarified that a legal representative may bring an eviction proceeding on premises owned by the decedent's estate, and the Surrogate's Court has jurisdiction over this type of action on behalf of the estate. The chapter also discusses limitations on the representative's rights; for example, the personal representative of a deceased lessee does not have the right to assign the lease without the landlord's consent.

The chapter next covers procedure for substituting a personal representative for a party to existing actions when a party dies during proceedings. Some actions abate, but in other proceedings a substitution is made pursuant to the EPTL and the CPLR. The chapter discusses differences in procedure depending on which point during a proceeding a party dies; it further discusses situations in which a co-plaintiff dies and "devolution of interest" obviates the need for substitution. The chapter also provides a form for affidavit and an order for substitution.

Actions against personal representatives in their individual capacity may be brought for failure to enforce the rights of a decedent. While contract and tort claims may be asserted against an estate, a representative isn't personally liable on contracts by the estate, unless the representative failed to reveal their representative capacity. The chapter discusses when the representative will be held individually liable for torts committed during estate administration, and also when a representative may be individually liable for fraud, or surcharged for misconduct or breach of fiduciary duty, such as negligence, fraud, or commingling. The chapter also covers procedural aspects of actions by or against personal representatives, including: necessary parties; jurisdiction over multiple personal representatives; venue; in which court actions may be brought; when the action will be transferred to Surrogate's Court; joinder of actions against a personal representative in individual and representative capacity; and execution on judgment against a personal representative.

In addition, the chapter discusses the right of a legal representative to employ legal counsel to either bring or defend an action on behalf of the decedent, and the right to be reimbursed for reasonable and necessary expenses in administering the estate, including legal fees. Finally, the chapter discusses when an estate representative from another jurisdiction may bring an action in New York.

Warren's Heaton on Surrogate's Court Practice (Matthew Bender) provides comprehensive coverage and analysis of New York Probate and Estates practice issues. Accepted by the courts as the leading authority on practice in Surrogate's Court, topics include jurisdiction, intestacy, probate, appointment of representatives and guardians, estate administration, fiduciary duties, accounting, commissions and fees, litigation, Federal and New York estate tax, and construction of wills and trusts. The treatise covers case law affecting substance and procedure; analysis of SCPA, EPTL, and related statutes; procedural guidance; and over 1,000 forms including official New York Surrogate's Court Forms and current Federal and New York estate tax forms with explanations. The treatise also covers Reformation and Trust-splitting issues, Supplemental Needs Trusts, Uniform Transfers to Minors, and Revocable Living Trusts.


New York surrogate's court,surrogate's court in New York,legal representative of decedent's estate in New York,personal representative of decedent's estate in New York,foreign executor in New York,foreign administrator in New York


For a complete discussion of jurisdiction and procedural matters, see Chapter 2, Jurisdiction; Powers of the Surrogate.

For related discussions of procedural matters, see also Chapter 3, Court Rules; and Chapter 4, Practice in General.

For complete discussion of powers and duties of the fiduciary, see Chapter 61, Fiduciary Duties, Powers, and Liabilities Generally.

For related discussion of fees, see Chapter 103, Compensation of Fiduciaries, chapter 104, Costs and Allowances, and Chapter 106, Attorney's Fees.


For in-depth analysis of state and federal statutes, case law, regulations, and statewide court rules presented in a "how-to" format, see New York Practice Guide: Probate and Estate Administration (Matthew Bender).

For comprehensive analysis of substantive and procedural law of estate administration in New York's Surrogate's Courts, see New York Estate Administration (Matthew Bender).

LexisNexis Answer Guide New York Surrogate's Court cites seminal cases and references to codes and court rules, and provides checklists and practice pointers (Matthew Bender).

See Modern Estate Planning (Matthew Bender) for coverage of all key estate planning topics, including gift taxation; transfers and interests subject to estate and gift taxation; estate and gift tax deductions; exclusions and credits; and generation-skipping transfers.

See Current Legal Forms for Estate Planning (Matthew Bender) for a wealth of sample estate planning forms, drafting guidance and expert legal commentary to assist in the fundamental and often time-consuming task of document drafting.
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