Detailed Answer
Under New York law, you normally need a certified death certificate to open an estate. Surrogate’s Court Procedure Act (SCPA) §207 requires proof of death before the court issues letters of administration or admits a will to probate. You can review the statute here: SCPA §207.
If you cannot obtain a certified death certificate—due to a lost record, a death abroad, or processing delays—you must seek alternate proof. The New York Department of Health issues a substitute “Certification of Death” when you submit an affidavit explaining the unavailability of the original certificate. You can start that process through the Vital Records Unit: NY Dept. of Health Vital Records.
Using an Obituary as Secondary Evidence
An obituary alone does not satisfy SCPA §207. Instead, you can attach the obituary to a sworn affidavit from a close relative, executor, or funeral director confirming the facts of death. The Surrogate’s Court may accept this combined package as secondary evidence if it finds the affidavit reliable.
Filing a Petition for Letters of Administration Without a Death Certificate
When you open an intestate estate (no valid will), you petition the court under SCPA Article 10. The petition must include any proof of death you can gather. If the court finds your affidavit and obituary credible, it may issue letters of administration conditionally, requiring you to submit the official certificate once it becomes available.
Helpful Hints
- Apply early for a certified or substitute death certificate from the NY Department of Health.
- Collect secondary records: obituary, funeral home affidavit, hospital or physician statement.
- Draft a clear, sworn affidavit explaining why the death certificate is unavailable.
- Include contact information for anyone who can verify the facts of death.
- Consult an estate attorney if the court questions your proof or if the estate involves complex assets.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Always consult a qualified attorney regarding your specific situation.