N.Y. MHY Law § 81.44 — New York Code / Act MHY / Title E / Article 81 / Section 81.44
Proceedings upon the death of an incapacitated person
Status: in_force

§ 81.44 Proceedings upon the death of an incapacitated person.\n  (a) When used in this section:\n  1. "Statement of death" means a statement, in writing and\nacknowledged, containing the caption and index number of the\nguardianship proceeding, and the name and address of the last residence\nof the deceased incapacitated person, the date and place of death, and\nthe names and last known addresses of all persons entitled to notice of\nfurther guardianship proceedings pursuant to paragraph three of\nsubdivision (c) of section 81.16 of this article including the nominated\nand/or appointed personal representative, if any, of the deceased\nincapacitated person's estate.\n  2. "Personal representative" means a fiduciary as defined by\nsubdivision twenty-one of section 103 of the surrogate's court procedure\nact to whom letters have been issued and who is authorized to marshal\nthe assets of the decedent's estate.\n  3. "Public administrator" means a public administrator within or\nwithout the city of New York, as established by articles eleven and\ntwelve of the surrogate's court procedure act, or the chief fiscal\nofficer of a county eligible to be appointed an administrator, pursuant\nto section twelve hundred nineteen of the surrogate's court procedure\nact. The role of the public administrator under this section is that of\na stake holder or escrowee only, and the public administrator shall not,\nby virtue of this section, have a substantive role in administering the\nestate.\n  4. "Statement of assets and notice of claim" means a written statement\nunder oath containing the caption and index number of the guardianship\nproceeding, the name and address of the incapacitated person at the time\nof death, a description of the nature and approximate value of\nguardianship property at the time of the incapacitated person's death;\nwith the approximate amount of any claims, debts or liens against the\nguardianship property, including but not limited to medicaid liens, tax\nliens and administrative costs, with an itemization and approximate\namount of such costs and claims or liens.\n  (b) Unless otherwise directed by the court, all papers required to be\nserved by this section shall be served by regular mail and by certified\nmail return receipt requested.\n  (c) Within twenty days of the death of an incapacitated person, the\nguardian shall:\n  1. serve a copy of the statement of death upon the court examiner, the\nduly appointed personal representative of the decedent's estate, or, if\nno personal representative has been appointed, then upon the personal\nrepresentative named in the decedent's will or any trust instrument, if\nknown, upon the local department of social services and upon the public\nadministrator of the chief fiscal officer of the county in which the\nguardian was appointed, and\n  2. file the original statement of death together with proof of service\nupon the personal representative and/or public administrator or chief\nfiscal officer, as the case may be, with the court which issued letters\nof guardianship.\n  (d) Within one hundred fifty days of the death of the incapacitated\nperson, the guardian shall serve upon the personal representative of the\ndecedent's estate or where there is no personal representative, upon the\npublic administrator or chief fiscal officer, a statement of assets and\nnotice of claim, and, except for property retained to secure any known\nclaim, lien or administrative costs of the guardianship pursuant to\nsubdivision (e) of this section, shall deliver all guardianship property\nto:\n  1. the duly appointed personal representative of the deceased\nincapacitated person's estate, or\n  2. the public administrator or chief fiscal officer given notice of\nthe filing of the statement of death, where there is no personal\nrepresentative.\n  3. any dispute as to the size of the property retained shall be\ndetermined by the surrogate court having jurisdiction of the estate.\n  (e) Unless otherwise ordered by the court upon motion by the guardian\non notice to the person or entity to whom guardianship property is\ndeliverable, and the court examiner, the guardian may retain, pending\nthe settlement of the guardian's final account, guardianship property\nequal in value to the claim for administrative costs, liens and debts.\n  (f) Within one hundred fifty days of the incapacitated person's death,\nthe guardian shall file his or her final report with the clerk of the\ncourt of the county in which annual reports are filed, and thereupon\nproceed to judicially settle the final report upon such notice as\nrequired by subdivision (c) of section 81.33 of this article, including\nnotice to the person or entity to whom the guardianship property was\ndelivered. There shall be no extension of the time to file a final\nreport except by order of the court.\n  (g) Upon failure of the guardian to comply with subdivisions (d) or\n(f) of this section, any person entitled to notice of this proceeding\nmay file a petition to compel the guardian to account, to suspend and/or\nremove the guardian, and to take and state the guardian's account.\n