In this proceeding pursuant to SCPA 2103, respondent moves to dismiss on the grounds of lack of subject matter jurisdiction (CPLR 3211 [a] [2]). This proceeding was commenced by a petition for an order to attend.

The petition alleges that the decedent created a joint account with the respondent which was a convenience account and that the funds on deposit after his death were assets of the estate. The answer states that the account was a joint account in the names of decedent and respondent, in trust for respondent and two other persons. The executor was apparently unaware of the creation of a Totten trust.

Respondent contends that even if there is a defect in the designation of the joint tenant, the property passed by operation of law to the trust beneficiaries. Respondent argues that this court lacks jurisdiction to determine a controversy related to a non-testamentary asset and specifically a Totten trust, citing Matter of O'Connell (98 AD3d 673 [2d Dept 2012]).

Whether title to the property in question is presently held in the form of a non-testamentary asset is not the test to determine jurisdiction. The Surrogate's Court has jurisdiction to determine controversies related to the affairs of the decedent (NY Cons. Art. VI sec 12 [d]; SCPA 201 [3]). For the Surrogate's Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate (Matter of Piccione,57 NY2d 278 [1982]. The administration of the estate is tangibly altered by the outcome of a proceeding (Matter of Hersh, 102 AD3d 872 [2d Dept 2013]) where [*2]the estate asserts an interest in property which is the subject of the proceeding (Matter of Denton, 6 AD3d 531 [2d Dept 2004]).

The proceeding in Matter of O'Connell was commenced by the named beneficiaries of a Totten trust against a third person alleged to have converted assets in the account. The estate did not seek to recover the assets. The controversy was between living persons.

Here, the executor alleges that the designation of a joint tenant and the creation of a Totten trust do not reflect the intention of the decedent and the funds are assets of the estate. The executor is entitled to conduct an inquiry with respect to the account (SCPA 2103 [3]). However, he should first obtain the bank records, determine the form of the account and move for permission to amend the petition, if necessary. If the account is designated as a Totten trust, all of the beneficiaries of the account must be made parties to the proceeding.

The court finds that it has subject matter jurisdiction in this proceeding.

The motion to dismiss is denied.

This is the decision and order of the court.

Dated: July 30, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court