What is an Affidavit of Urgency and When is it Appropriate?
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As a Trusts and Estates attorney, I routinely represent people who are in the?Surrogate’s Court. These might be people who are nominated as?Executors?in someone’s?Last Will and Testament. These might be people who are among the?next-of-kin?of a recently deceased person and are seeking an appointment as an?Administrator?to handle the affairs of the Estate. In either situation, my client is asking the Surrogate’s Court to issue?Letters?(Letters Testamentary for Executors; Letters of Administration for Administrators), so that they can handle the affairs of the Estate. Sometimes it’s appropriate to ask for an appointment as a?Preliminary Executor?if there’s going to be a?challenge to a Will?being offered to?probate.?
In general, the Surrogate’s Court is an exceedingly quick and efficient court, however, sometimes a file is not moving particularly quickly through the Court for some reason or another. Perhaps there is a state of emergency, (like the?COVID-19 pandemic,) which had a significant effect on the court system.?
Or perhaps the timing of the filing occurs during a time when a lot of the court staff may be on vacation. (Such as the week before Labor Day, the week between Christmas and New Year’s, spring religious holidays, such as Easter and Passover, etc.)
While the Surrogate’s Court always tries to handle every file as quickly and expeditiously as possible, sometimes there is just a backlog that will require a bit of a wait. (What happens if someone has an actual emergency which requires the immediate appointment of an Executor or an Administrator — and waiting for the Court to process papers might cause significant financial harm to the Estate.)
Here are some examples of when that might happen:
1. The Estate includes a rental property that is essential for an Executor or an Administrator to manage. This would include collecting the rents or paying expenses, including the superintendent or the contractor, etc.
2. There is a lawsuit that the Executor or Administrator needs to bring before the expiration of the Statute of Limitations. This might be a lawsuit in which the deceased was involved prior to their death, either as a plaintiff or a defendant, or perhaps, the deceased died as the result of someone else’s actions and the Estate needs to bring a lawsuit either for their wrongful death or conscious pain and suffering. In any of these situations, there are deadlines by which the Estate must file papers. If the Executor or Administrator or their attorney sees an imminent deadline coming, that would be cause for an emergency.
3. The Executor or Administrator may have a suspicion that someone has removed valuable assets from the residence of a deceased, and wants to get some sort of restraining order from the Court to prevent their sale or permanent loss. This is particularly important for things where the suspected thief — whether they be a family member, a friend, or a complete stranger — might imminently leave the state or country, making it difficult to recover the assets. In these situations, the Court would want to appoint a fiduciary immediately to deal with this and potentially start discovery and turnover proceedings.
The way that a party can tell the Court that there is an imminent emergency is by filing a document called an?Affidavit of Urgency. This is a sworn statement by the party explaining to the Court why there is an emergency and the harm that the Estate is likely to suffer if the Court is unable to process the papers quickly. This is something that the party would need to sign before a notary public, and the party or their attorney would then submit it to the Court. In general, Courts take these very seriously, often reading them immediately and elevating them to the parties who handle emergency and urgent matters.
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That said, one should be very scrupulous when choosing to file an Affidavit of Emergency. Don’t be like the boy who cried wolf. If you say that a matter is an emergency when it isn’t, the Court is not going to expedite your file. This is why it’s important that the Affidavit of Urgency provide tangible reasons why this matter deserves an expedited review. That you are impatient or have been waiting a while simply is not reason enough. And no, the Court will not retaliate against you by putting your file at the bottom of the pile.
Attorneys need to be very careful of this. No attorney wants a reputation of crying wolf and saying that their files all deserve expedited handling. That would be a quick way to not be taken seriously in the future and would do a real disservice to a subsequent client with a real emergency.
Therefore, in conclusion, this is a very helpful tool when it is appropriate. The Surrogate’s Court is a court that serves the community in which it sits. And in my experience, every person in the building, from the judge to the clerks, to the attorneys who work there, all wish to do whatever they can to help. However, one should only use this tool when it’s necessary, to be respectful of the Court and the people that make it work.
For more information on this topic, please?contact me.?
Thomas Sciacca
(212) 495-0317