This court rendered a decision dated September 27, 2006, holding that the petitioner, an alleged granddaughter of decedent, was entitled to letters of administration. This decision granted the petition on an uncontested basis, but required notice of settlement of the decree upon all other alleged distributees. Upon settlement of the decree, another alleged granddaughter, who appeared to have defaulted, filed objections to the appointment of the petitioner as administratrix asserting that she was never served with process and disputing the petitioner's status as a distributee and grandchild of the decedent.

In her initial application, the petitioner alleged that she is the decedent's granddaughter, a non-marital child of the decedent's predeceased son, and that the decedent had adopted a son and a daughter of the same predeceased son, thereby making those grandchildren the decedent's children. Subsequently, the petitioner amended her petition to indicate that although the two other grandchildren lived with the decedent, the decedent never formally adopted them but, nonetheless, they were the decedent's grandchildren and distributees.

Where, as here, the petitioner concedes that she is a non-marital child for whom no order of filiation or instrument acknowledging paternity exists, EPTL 4-1.2(a)(2)(C) provides, in pertinent part, that paternity must be established by clear and convincing evidence that the father of the child openly and notoriously acknowledged the child as his own. Moreover, in applications by non-marital children for letters of administration, the standard procedure is to obtain the consents of, or cite, the individuals who would be the distributees pursuant to EPTL 4 -1.1 in the event that the alleged non-marital distributees fail to establish their status pursuant to EPTL 4-1.2.

As objections are now filed, the petitioner has the burden to establish her paternity through the decedent's predeceased son (see EPTL 4-1.2[a][2][C]). Moreover, because the petition, as amended, is silent on the issue of whether the two other grandchildren are marital or non-marital children of the decedent's predeceased son, it cannot be determined, at this time, who constitutes the next of class of distributees and whether jurisdiction was obtained over its members.

As the petitioner alleges that she is a non-marital child, and in the event that the objecting granddaughter, and the grandson, are also non-marital children of the [*2]predeceased son, Schedule A forms must be filed with respect to all of them (Uniform Rules for Sur Ct [22 NYCRR] § 207.15[c], and Official Form A-1, Schedule A). Furthermore, there must be additional proof as to who would constitute the decedent's distributees under EPTL 4-1.1 in the event that all of the alleged grandchildren, including the petitioner, fail to establish their status as a distributee of the decedent.Thus, at this time, the court is unable to make a final determination of the petitioner's status as a distributee eligible to receive letters of administration. Accordingly, this decision constitutes the order of the court withdrawing its decision dated September 27, 2006 and directing the petitioner to supplement and amend her petition by filing the above noted required official uniform schedule for all alleged non-marital distributees and in the event that all of the distributees are alleged to be non-marital, by listing the persons who would be distributees should the listed non-marital distributees fail to establish their status as distributees pursuant to EPTL 4-1.2. The petitioner shall either file a waiver and consent for the next class of distributees or serve process upon them. After jurisdiction has been obtained over all necessary parties, the contested application for letters of administration shall appear upon the court's ready for trial calendar upon compliance with Uniform Rules 207.29 and 207.30. The Chief Clerk shall mail a copy of this decision and order to respective counsel for the petitioner and the objectant.

Proceed accordingly.

SURROGATE