Challenging a Petition for Possession and Control of Estate Property in New York Probate

Brief answer: If someone files a petition in Surrogate’s Court asking for possession and control of estate property (for example, to take possession of real estate, bank accounts, or personal property belonging to a decedent), you can challenge that petition by filing a timely written objection or answer, raising procedural and substantive defenses, asking the court for interim relief, and—if necessary—bringing motions to dismiss or for summary judgment. Surrogate’s Court practice is governed mainly by the Surrogate’s Court Procedure Act (SCPA) and certain Civil Practice rules; you will often need to act quickly to preserve rights, obtain documents, and request a hearing. This article explains the common grounds to oppose these petitions, the practical steps to take in New York, and helpful shortcuts to prepare for court.

Why this matters

When a petitioner seeks possession and control of estate property, the court may give them authority to collect, manage, or sell assets. That affects the value of the estate, the ability of beneficiaries or creditors to protect assets, and the distribution of property after administration. If the petition is improper or the petitioner lacks authority, failing to object can limit your ability to recover property later.

Key New York law resources

• Surrogate’s Court Procedure Act (SCPA) — governing probate and administration practice in New York: https://www.nysenate.gov/legislation/laws/SCPA
• Estates, Powers & Trusts Law (EPTL) — sets out many substantive rules on wills, fiduciaries, and intestacy: https://www.nysenate.gov/legislation/laws/EPTL
• Civil Practice Law & Rules (CPLR) — used for many motion practices such as motions to dismiss (CPLR 3211) and summary judgment (CPLR 3212): https://www.nysenate.gov/legislation/laws/CPLR
• New York State Unified Court System — Surrogate’s Court information and forms: https://www.nycourts.gov/courts/nyc/surrogates/

Step-by-step: How to challenge or seek dismissal

1. Read the petition and papers carefully

Identify exactly what the petitioner asks the court to do (take possession, control, collect assets, sell property, or be appointed temporary custodian). Note the return date, the names of parties served, and whether the petitioner claims authority as executor, administrator, temporary administrator, guardian, or other fiduciary.

2. Check standing and notice

Only interested persons (beneficiaries, heirs at law, creditors, certain next of kin, or a named fiduciary) generally have the right to object. Also confirm whether the petitioner properly served the required parties and followed SCPA notice rules. If required persons were not served, you can ask the court to dismiss or pause the petition for insufficient notice.

3. Identify common legal grounds to oppose the petition

• Petitioner lacks authority or proper appointment to seek possession/control.
• Insufficient or improper service and notice to interested persons.
• Failure to plead or support the factual basis for possession (for example, no showing of imminent risk to estate assets).
• Fiduciary misconduct, conflict of interest, fraud, undue influence, or bad faith.
• Petitioner did not post a required bond or provide adequate security.
• Venue or jurisdictional defects (for example, the Surrogate’s Court lacks jurisdiction over the property or parties).
• Statute of limitations or laches where delay prejudices interested parties.

4. File a written objection or answer

Prepare and file a responsive paper (often called an objection, answer, or verified answer), signed under penalty of perjury, that admits or denies relevant allegations and sets out affirmative defenses. Ask the court for a hearing on the petition. Attach documents or affidavits that support your position (ownership documents, account statements, letters, or witness affidavits).

5. Seek interim relief if immediate action is required

If the estate property is at risk of being dissipated or removed, ask the court immediately for temporary injunctive relief such as a stay, sequestration, turnover, or an order preventing transfer while the petition is litigated. Surrogate’s Court can issue interim orders to protect estate assets pending resolution.

6. Bring dispositive motions when appropriate

If the petition fails as a matter of law, you can move to dismiss under CPLR 3211 (for legal defects like lack of jurisdiction, lack of capacity, or failure to state a cause). If the facts are undisputed and you are entitled to judgment as a matter of law, consider a summary judgment motion under CPLR 3212. Cite controlling SCPA or EPTL provisions that control the petitioner’s claimed authority.

7. Demand an accounting and records

Ask the court to require the petitioner to produce an inventory, receipts, bank statements, and an accounting showing need and justification for possession or control. A full accounting lets the court assess whether the petition is warranted.

8. Preserve evidence and avoid self-help

Collect emails, texts, photographs, deeds, wills, titles, bank statements, and correspondence. Do not try to forcibly retake property or block access; self-help can create liability and complicate the case. Use court orders to recover property.

9. Consider settlement or mediation

Probate disputes often settle. Propose mediation or settlement early if that preserves estate value and reduces costs for all parties.

10. If the petition succeeds, preserve appellate rights

If the court grants the petition and you later believe the order was wrong, you may have appeal rights. Appeal windows and procedures vary; act promptly and consult an attorney about stays pending appeal.

Evidence and practical documents to assemble

• Death certificate and copy of the decedent’s will (if any)
• Letters testamentary or letters of administration (if issued)
• Deeds, vehicle titles, bank statements, insurance policies, and account lists
• Correspondence with the petitioner about possession/control
• Affidavits from witnesses or professionals (accountants, appraisers)
• Proof of service showing who was served and when

Possible court outcomes

• Dismissal of the petition for lack of authority, lack of notice, or other legal defects
• Refusal to grant possession until additional safeguards are in place (bond, accounting)
• Limited or conditional possession (court orders turnover of specified assets only)
• Appointment of a neutral temporary administrator or custodian
• Order requiring an accounting and possible surcharge or removal of a fiduciary found to have acted improperly

Helpful hints

• Act fast: probate proceedings can move quickly. Note the return date on the petition and file your objection promptly.
• Check service: an improperly served petition can often be set aside. Compare service with SCPA notice rules and local court rules.
• Use verified affidavits: courts give weight to sworn statements and documentary evidence.
• Request a temporary order to preserve assets if there is a risk of removal or dissipation.
• Preserve original documents and digital records; the court may require originals for inspection.
• Do not remove property by force or lock out occupants; seek court orders to avoid contempt or civil claims.
• If the petitioner claims authority as a fiduciary, ask for letters testamentary or letters of administration and a bond if required.
• Consider early mediation to save estate value and avoid protracted litigation.
• Contact the Surrogate’s Court clerk for local filing requirements, page limits, and chapter rules.
• If money is at stake or the situation is complex, consult an attorney who practices in Surrogate’s Court promptly.

Where to find New York forms and local rules

Visit the New York State Unified Court System Surrogate’s Court pages for forms and local rule information: https://www.nycourts.gov/courts/nyc/surrogates/. Review the Surrogate’s Court Procedure Act for the substantive and procedural framework: https://www.nysenate.gov/legislation/laws/SCPA.

When to hire a lawyer

If the petition involves significant assets, allegations of misconduct, or contested factual issues (ownership disputes, fraud, or removal of a fiduciary), hire a lawyer experienced in New York Surrogate’s Court practice. An attorney can draft objections, prepare affidavits, bring or oppose motions under CPLR rules, and represent you at hearings.