Relates to powers of attorney in relation to decedents' estates required to be in writing and recorded

We recommend this measure to clarify the law with regard to the filing of an agreement with the Surrogate's Court by an abandoned property services locator under SCPA 1310 and a rule requirement adopted by the Office of Unclaimed Funds of the New York Office of the State Comptroller ("OSC"). The measure would eliminate the current practice whereby any "finder's agreement" that has been executed by a potential claimant to such unclaimed funds must be filed with the Surrogate's Court when no estate has been opened and no fiduciary has been appointed for the estate.

Currently, a claimant who is not a fiduciary may enter into an agreement with an abandoned property services locator or other similar agent to pay the agent up to 15% of the unclaimed funds recovered. A claimant who has not been appointed as a fiduciary is not authorized to represent the estate. The agreement is simply a contract between two individuals, neither of whom has the authority to represent the estate. Operationally, the Office of Unclaimed Funds requires the party making the claim to provide a court certified copy of the property location agreement filed with the Surrogate's Court when a decedent's estate representative or qualifying heir pursuant to section 1310 of the Surrogate's Court Procedure Act is making claim to abandoned funds. However, we believe that the statute does not require that such agreements be filed with the court when the agreement is signed by a person claiming the property as a qualified affiant pursuant to section 1310 of the Surrogate's Court Procedure Act. In practice such agreements are filed in bulk by the property locator's agent, in a county of its choice, without a companion estate proceeding. The absence of an estate proceeding renders such filings meaningless from an oversight perspective and is unnecessary pursuant to statute. In the opinion of our Advisory Committee, with limited exceptions, property locator agreements concerning assets of a decedent should be executed only by fiduciaries and thereafter filed in the Surrogate's Court which issued such letters, so that all interests of the rightful heirs of a decedent and creditors of an estate are protected.

Administratively, the Office of Unclaimed Funds in the OSC has determined it will no longer accept an abandoned property location services agreement where letters have not been issued to an estate representative, unless it is executed by the spouse or children of a decedent or the amount at issue is less than $1,000. Further, where, excepting those cases where a locator's agreement is signed by the spouse or children of a decedent, all other claimants would be required to obtain letters pursuant to Article 13 of the SCPA for claims in excess of $1,000. The process can be completed on line, costs one dollar for a certificate, and more adequately ensures that

all distributees, beneficiaries and creditors are protected. The OSC has proposed and expects to adopt regulatory changes to this effect.

This measure would enact the necessary statutory amendments to ensure that these agreements are not accepted for filing by the Surrogate's Court unless a fiduciary has been appointed or is pending before the court.

This measure, which would have no meaningful impact on the public treasury, would take effect immediately.

Legislative History:

OCA 2014-76 Senate 7077 (Senator Bonacic) (ref to Judiciary)