What Are Affidavits?
An affidavit is a written statement of facts made under oath. In Surrogate's Court proceedings, affidavits are used to provide the court with sworn information — such as who the heirs are, that a will cannot be found, that notice was properly sent, or that a power of attorney is still valid.
The person signing the affidavit (the "affiant") swears that the statements are true under penalty of perjury. Affidavits must typically be notarized.
Types of Affidavits Used in Surrogate's Court
Affidavit of Heirship
Used in administration proceedings (when there is no will) to establish who the lawful heirs are. Lists the decedent's family members, their relationships, and whether they are alive or deceased. This is a critical document — it determines who receives the estate assets.
Affidavit of Due Diligence
Establishes that a thorough search was conducted and no will could be found. The affiant swears they searched the decedent's home, contacted their attorney (if known), checked safe deposit boxes, and inquired with family members. Required in administration proceedings.
Affidavit of Assets and Liabilities
Required when an estate exceeds $50,000 in value. Lists all known assets (bank accounts, real property, vehicles, investments) and liabilities (debts, mortgages, unpaid bills). Used by the court to assess whether a bond should be required.
Affidavit of Comparison (P-13)
Used in probate proceedings. Certifies that the photocopy of the will submitted to the court is a true and accurate copy of the original. Required because the court retains the original will.
Affidavit of Service
Proves that a citation or other legal document was properly served on an interested party. Details who was served, when, where, and how (in person, by mail, etc.). Required to show the court that all parties were given proper notice.
Affidavit of Mailing Notice of Probate
Proves that the Notice of Probate (SCPA 1409) was mailed to all interested parties. Lists each recipient, their address, and the date of mailing.
Affidavit as to Power of Attorney Being in Full Force
Used when an agent under a power of attorney is executing a document. The agent swears that the principal is alive, the POA has not been revoked, and the agent's authority is still in effect.
Affirmation of Urgency
Not technically an affidavit but a related sworn statement filed when a matter requires expedited court attention. Commonly used when a real estate sale is pending and the administrator needs restrictions on letters removed quickly.
Citations Explained
A citationis a legal notice issued by the Surrogate's Court. It informs interested parties about a pending proceeding and gives them the opportunity to appear and be heard.
When Citations Are Required
- Administration proceedings — all distributees must be cited
- Probate proceedings — if any beneficiary or heir does not sign a waiver
- Guardianship proceedings — interested parties must be notified
- Compulsory accounting — the fiduciary must be cited
- Petition to revoke letters — the current fiduciary must be cited
How to Respond to a Citation
- Read the citation carefully — note the return date and the court address.
- You can appear in person or through an attorney on the return date.
- If you do not object to the petition, you can sign a Waiver and Consent instead of appearing.
- If you do not respond at all, the court may proceed without you.
Service Methods
Citations and other court documents must be "served" on interested parties. New York law requires specific methods of service:
Personal Service
The document is physically handed to the person. This is the most reliable method and is always acceptable.
Service by Mail
Documents are mailed via certified or registered mail to the party's last known address. Proof of mailing must be filed with the court.
Alternative Service
When a party cannot be located through normal means, the court may authorize alternative service — such as publication in a newspaper or service by email (recently allowed in some cases under new NY legislation).
How to File Documents
- In person: Bring documents to the Nassau County Surrogate's Court, 262 Old Country Road, Mineola, NY 11501. Hours: Monday–Friday, 9 AM–5 PM.
- NYSCEF (electronic filing): New York State Courts Electronic Filing system. Available for many document types. Visit nyscef.nycourts.gov.
- By mail: Some documents can be mailed to the court. Check with the specific department first. Use certified mail with return receipt for proof.
- FedEx / overnight delivery: Accepted for time-sensitive filings. Address to the specific department.
Frequently Asked Questions
Do I need a lawyer to prepare an affidavit?
Not necessarily, but affidavits must be precise and complete. An incorrect or incomplete affidavit can delay your proceeding. If you're unsure about the requirements, consulting an attorney is recommended.
What happens if I ignore a citation?
If you do not respond to a citation by the return date, the court may proceed with the case without your input. You may lose the opportunity to object or assert your rights in the estate. Always take a citation seriously.
Can citations be served by email?
Recent New York legislation allows next-of-kin notices by email in certain circumstances. However, standard citations generally still require personal service or certified mail. The court may authorize email service as a form of alternative service in specific cases.
How long does someone have to respond to a citation?
The citation itself specifies the return date — typically 20–30 days from the date of service. Check the citation for the exact deadline. If you need more time, you may request an adjournment from the court.