N.Y. Surrogate's Court Procedure Act § 315: Joinder and representation of persons interested in estates 1

§ 315. Joinder and representation of persons interested in estates

1. The provisions of this section shall apply in any proceeding in

which all persons interested in the estate are required to be served

with process. For the purposes of this section, the term "an interest in

the estate" includes both interests in income and interests in

principal.

2. Representation of class interests.

(a) Where an interest in the estate has been limited as follows, it

shall not be necessary to serve process on any other person than as

herein provided:

(i) In any contingency to the persons who shall compose a certain

class upon the happening of a future event, the persons in being who

would constitute the class if such event had happened immediately before

the commencement of the proceeding.

(ii) To a person who is a party to the proceeding and the same

interest has been further limited upon the happening of a future event

to a class of persons described in terms of their relationship to such

party, the party to the proceeding.

(iii) To unborn or unascertained persons, none of such persons, but if

it appears that there is no person in being or ascertained, having the

same interest, the court shall appoint a guardian ad litem to represent

or protect the persons who eventually may become entitled to the

interest.

(b) Where a party to the proceeding has a power of appointment it

shall not be necessary to serve the potential appointees and if it is a

general power of appointment it shall not be necessary to serve the

takers in default of the exercise thereof.

3. Representation of contingent interests.

Where an interest in the estate has been limited to a person who is a

party to the proceeding and the same interest has been further limited

upon the happening of a future event to any other person it shall not be

necessary to serve such other person.

4. Representation in probate proceeding. In a proceeding for probate

of a testamentary instrument the interests of the respective persons

specified in subdivisions 2 (a) (ii) and 3 of this section shall be

deemed to be the same interest, whether or not their respective

interests are in income or in principal or in both, provided that they

are beneficiaries of the same trust or fund, that they have a common

interest in proving or disproving the instrument offered for probate and

that the person who is a party under subdivision 2 (a) (ii) or the

person to whom the interest has been limited under subdivision 3 would

not receive greater financial benefit if such instrument were denied

probate (in the case where such beneficiaries have a common interest in

proving such instrument) or admitted to probate, (in the case where such

beneficiaries have a common interest in disproving such instrument).

5. Representation of persons under a disability. If the instrument

expressly so provides, where a party to the proceeding has the same

interest as a person under a disability, it shall not be necessary to

serve the person under a disability.

6. The decree or order entered in any such proceeding shall be binding

and conclusive on all persons upon whom service of process is not

required.

7. In any proceeding in which service of process upon persons

interested in the estate may be dispensed with pursuant to the

provisions of this section or section twenty-two hundred ten, in

addition to such other requirements as may be applicable to the petition

in the particular proceeding, the petition shall (i) set forth in a form

satisfactory to the court the information required by subdivision three

of section three hundred four with respect to the persons interested in

the estate upon whom service of process may be dispensed with, the

nature of the interests of such persons and the basis upon which service

of process may be dispensed with, and (ii) state whether the fiduciary

or any other person has discretion to affect the present or future

beneficial enjoyment of the estate and, if so, set forth the discretion

possessed and, if exercised, the manner in which it has been exercised.

Notwithstanding the foregoing provisions of this section and any

provisions of the instrument to the contrary, if the court finds that

the representation of a person's interest is or may be inadequate it may

require that he be served. The basis for such finding shall be set forth

specifically in the order.

8. Nonjudicial settlements of accounts of fiduciaries. Unless the

instrument expressly provides otherwise, an instrument settling an

account, executed by all the persons upon whom service of process would

be required in a proceeding for the judicial settlement of the account,

shall be binding and conclusive on all persons upon whom service of

process would not be required to the same extent as that instrument

binds the persons who executed it.