Proposed amendment of22 NYCRR 207.4-a(e)(6) & (7) and 207.4-aa(d) (Uniform Rules for Surrogate’s Court)

Statement Regarding Legislative Proposal by the Office of Court

Administration’s Surrogate’s Court Advisory Committee

The New York County Lawyers’ Association’s Estates, Trusts and Surrogate’s Court Practice Section (the “Section”) has considered a July 9, 2014 legislative proposal (the “Proposal”, annexed hereto as Exhibit A) by the Surrogate’s Court Advisory Committee of the Office of Court Administration of New York (the “Committee”). The Proposal recommends revising the rules regarding the filing of hard copy death certificates in e- filed proceedings in Surrogate’s Court by providing that the “paper original certified death certificate” shall be filed with the will unless the court in its discretion accepts an electronically filed death certificate with no hard copy.

Following a thoughtful and reasoned dialogue on the Proposal, the Section has been unable to reach a consensus in support of the Proposal. Section members voiced concerns that the amendments advocated by the Proposal would unnecessarily introduce into the relevant statutes a new element of uncertainty regarding, inter alia, the circumstances in which a Surrogate’s Court would exercise discretion to accept an e-filed death certificate in lieu of the original, as well as whether a paper copy of the death certificate would be required for filing in all cases. Section members also expressed concerns that the Proposal could lead to an increased risk of fraud. Due to these concerns, and the varying views of the Section’s members on these issues, the Section declines to submit a comment on the Proposal.

EXHIBIT A

A. GAIL PRUDENTI

Chief Administrative Judge

JOHN W. MCCONNELL

Counsel

MEMORANDUM

July 9, 2014

To: All Interested Persons

From: John W. McConnell

Re: Proposed amendment of22 NYCRR 207.4-a(e)(6) & (7) and 207.4-aa(d) (Uniform Rules for Surrogate’s Court), relating to filing and e-filing of death certificates.

The Surrogate’s Court Advisory Committee has recommended the amendment of the Uniform Rules for Surrogate’s Court relating to electronic filing (22 NYCRR §§ 207.4-a (e)(6) & (7) and 207.4-aa(d)) (Exh. A). The proposed amendments would require, in e-filed proceedings, a hard copy filing of the “paper original certified death certificate” along with the will, “unless the court in its discretion accepts an e-filed death certificate with no hard copy.” According to the Committee, “the decision whether to allow the electronic filing of a death certificate is appropriately a matter for the Surrogate’s discretion, but this discretion should be utilized only in the unusual case.” The Committee believes that “in every case there should be a hard copy version filed that is the official document,” and “disapproves any practice allowing a blanket dispensing of the hard copy death certificate whether in a paper case or an e-filed case.

Persons wishing to comment on this proposal should e-mail their submissions to rulecomments@nycourts.gov or write-to,-John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York 10004. Comments must be received no later than September 8, 2014,

All public comments will be treated as available for disclosure under the Freedom of Information Law and are subject to publication by the Office of Court Administration. Issuance of a proposal for public comment should not be interpreted as an endorsement of that proposal by the Unified Court System or the Office of Court Administration.

EXHIBIT A

2014

The Filing and e-Filing of Death Certificates (22 NYCRR 207.4-a(e)(6) & (7); 22 NYCRR 207.4-aa(d)

This proposal recommends a revision of the rule regarding the filing of the hard copy death certificate in e-filed proceedings in Surrogate’s Court. In particular, the revision would add the language “The paper original certified death certificate shall be filed with the will unless the court in its discretion accepts an e-jiled death certificate with no hard copy”

The Committee agrees that the decision whether to allow the electronic filing of a death certificate is appropriately a matter for the Surrogate’s discretion, but this discretion should be utilized only in the unusual case. It is further the opinion of the Committee that in every case there should be a hard copy version filed that is the official document. Thus, the Committee disapproves any practice allowing a blanket dispensing of the hard copy death certificate whether in a paper case or an e-filed case.

Proposal:

202.4-a(e)(6) & (7)

(6) If an e-filer submits a petition for probate for which the court does not already have in its possession the original purported last will and testament and any codicils thereto being offered for probate, the e-filer shall file directly with the court the paper original purported last will and testament and any codicils thereto and a hard copy of the death certificate certificate, attorney certified if required by the court, within two business days of the date of e-filing:·Except as otherwise directed by the court, process shall not issue nor shall a fiduciary be appointed before the original purported last will and testament, any codicils thereto and the appropriate death certificate are filed with the court. The paper original certified death certificate shall be filed with the will unless the court in its discretion accepts an e-filed death certificate with no hard Copy.

(7) If an e-filer submits a petition for administration thee-filer shall file a hard copy of the death certificate, attorney certified if required by the court, directly with the court within two business days of the date of e-filing. Except as otherwise directed by the court, process will not issue nor shall a fiduciary be appointed before the appropriate death certificate is filed with the court. The paper original certified death certificate shall be filed with.the will unless the court in its discretion accepts an e-filed death certificate with no hard copy.

202.4-aa(d)

(d) Clerk of Court Not to Accept Hard Copies of Documents for Filing Where Electronic Filing Is Required. The clerk of the court shall refuse to accept for filing hard copies of documents sought to be filed in proceedings where such documents are required to be filed electronically. The paper original certified death certificate shall be accepted for filing with the will unless the court in its discretion accepts an e-filed death certificate with no hard copy.