Opinion 95-20

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 fees paid in Surrogate's Court proceedings seeking multiple relief)

COURTS -- Surrogate's Court (filing fees for proceedings seeking multiple relief)

SURROGATE'S COURT PROCEDURE ACT, §2402: Whether a surrogate's court should charge a petitioner one filing fee or separate filing fees for each type of relief sought in a single proceeding seeking multiple relief will depend on the nature of the relief sought. If the court is required to decide separate issues in order to grant relief, then multiple filing fees may be charged. If the multiple relief sought involves the determination of the same issue, then a single filing fee should be charged.

This is in reply to your letter requesting our opinion as to whether more than one filing fee should be paid in a proceeding in Surrogate's Court where multiple relief is requested in the same proceeding.

Fees to be paid for proceedings in Surrogate's Court are set forth in section 2402 of the SCPA (Surrogate's Court Procedure Act). Section 2402 requires payment of a fee upon the filing of a petition to commence a proceeding for probate (subd. 1) and upon the filing of a petition to commence a proceeding for an accounting (subd. 4, para [a]). The fee schedule for each type of petition is set forth in subdivision 8 of section 2402.

You note that when estate administration will involve the creation of a trust, the petitioner generally will seek the appointment of a trustee as part of the relief requested in the probate or accounting petition. Subdivision 9, paragraph (a) of section 2402 requires payment of a fee of $35.00 for the filing of a petition for the appointment of a trustee. You note also that where multiple relief is sought in a single petition, some courts have been charging only the filing fee applicable to the probate or accounting proceeding, while other courts have been imposing separate fees for each of the types of relief being sought.

It is unlikely that the Legislature intended to allow the fee(s) to be paid to depend upon the happenstance of whether a petitioner seeks multiple relief in a single petition or files a separate petition for each form of relief sought. Rather, as the courts have noted, "[t]he purpose of the Surrogate's Court filing fee requirements is to help defray the cost of particular proceedings [citations omitted]" (Calabrese v Tomlinson, 106 AD2d 843, 484 NYS2d 242, 243 [3rd Dept., 1984]). In the case just cited, the court concluded that only one filing fee need be paid where there were seven potential distributees who filed objections to the entry of a will, because "[w]here, as here, all objectants are raising the same issues, the Surrogate's Court would be required to hear the same evidence and pass on the same issues whether there was one objectant or seven" (Id.). If the underlying purpose of the law were simply to raise revenue, we believe the court would have determined that separate fees should be paid by each potential distributee.

In contrast, in Estate of von Borsig, 92 Misc 2d 21, 399 NYS2d 356 (Surr. Ct., NY County, [1977]), the court concluded that separate fees should be paid on behalf of two individuals, one of whom served as both preliminary executrix and as executrix, and the other as successor executrix (upon the death of the other individual). The court noted that "[t]here would be separate issues if objections were filed as to the successor executrix, a different fiduciary is involved, and clearly within the meaning of the statute this is a separate fund.... Surely there is a greater burden upon the court by the filing of separate accounts in one proceeding for two petitioners acting in independent capacities as is the case here" (supra 399 NYS2d at 357).

While these cases involved multiple parties, we believe the reasoning is applicable to situations where a petition seeks multiple relief. Therefore, the case law suggests that the issue of whether to charge a single fee or multiple fees when multiple relief is sought in a single petition in Surrogate's Court depends upon the nature of the relief sought. In those cases where multiple relief is sought and the court is required to decide separate issues in order to grant relief, such as where a petitioner is seeking the appointment of a trustee in addition to the probate of a will or an accounting, there is a greater burden being placed on the court which would, in our opinion, justify the imposition of a multiple fee. Where, however, the multiple relief sought all involve the determination of the same issue, similar to the situation in Calabrese v Tomlinson, supra, it is our opinion that only a single fee should be charged. In other words, the issue of whether multiple fees may be assessed must be determined on a case-by-case basis. While we recognize that it would be preferable if such a subjective judgment did not have to be made in each case, it appears that the case law requires such a result. You may wish, therefore, to consider seeking the introduction of legislation which would establish a single objective rule.

June 12, 1995
Michael Colodner, Esq., Counsel
Office of Court Administration