Surrogate's Court, Broome County, November 30, 2017

Tully Rinckey, PLLC (Jennifer Corcoran of counsel) for petitioner.

{**58 Misc 3d at 429}Terry J. Dillon died intestate a resident and domiciliary of Takoma Park, Anne Arundel County, Maryland on May 13, 2016. A small estate petition for administration (for an estate having a value of $50,000 or less) was filed with the Register of Wills of Anne Arundel County, as estate No. 90754. That petition states that decedent owned two investment accounts, with a total value of just under $15,000, which were subject to probate in the State of Maryland. Jason M. Dillon, decedent's son, was the petitioner in the Maryland small estate proceeding. Decedent's other distributees were his wife, Miyuki Dillon, and his son, David Dillon, both of whom consented to the appointment of Jason Dillon as personal representative. An order was entered on November 4, 2016 by the Register of Wills in Anne Arundel County, Maryland, that decedent's estate be administered as a small estate and Jason M. Dillon would serve as personal representative. Letters of administration of a small estate were issued to Jason M. Dillon the same day.

On June 26, 2017, Jason Dillon filed a petition in Broome County, New York, Surrogate's Court, for ancillary letters of administration in the estate of Terry J. Dillon. Waiver and consent forms executed by David Dillon and Miyuki Dillon, an affidavit of assets and liabilities, a receipted funeral bill, a family tree affidavit, exemplified copies of the Maryland small estate proceedings and a certified copy of a certificate of letters of administration of a small estate from the Maryland court were all submitted with the petition.

Ancillary administration is requested because decedent owned a parcel of real estate in New York with an estimated value of over $120,000, along with a motor home, two vehicles and miscellaneous tools and equipment, with a total estimated value of $62,000. Petitioner is requesting this court issue full ancillary letters of administration in New York State, based on the small estate proceeding undertaken in Maryland, decedent's domicile. In further support of the petition for ancillary letters, petitioner filed an affidavit from Gordon D. Fronk, Esq., the Maryland attorney who handled the Maryland small estate proceedings, on November 16, 2017.

The narrow issue for the court is whether full ancillary letters of administration can be issued in New York where the foreign estate proceedings, in this case in Maryland, are only a small estate proceeding. For the reasons discussed below, the court finds that ancillary letters cannot be issued under these circumstances.{**58 Misc 3d at 430}

Ancillary administration is predicated on "actual administration in the domiciliary jurisdiction." (SCPA 1601.)^[FN1] Full administration of decedent's estate was not undertaken in Maryland. Instead, a small estate proceeding, pursuant to subtitle 6 of title 5 of the Maryland Code Annotated, [*2]Estates and Trusts was utilized. A small estate in Maryland is limited to $50,000.^[FN2]

Decedent's personal property located in New York does not require ancillary administration. Comity requires New York to recognize the authority of a properly appointed foreign fiduciary over personal property. (SCPA 1309.) However, the petitioner has insufficient legal authority as the Maryland administrator, because his small estate administration is limited to $50,000 of assets.

As Mr. Fronk's affidavit points out, decedent's New York real estate is subject to New York, not Maryland estate law. The affidavit does not provide, nor can the court independently find, any authority for the proposition that the court should grant ancillary letters giving more authority to petitioner than his domiciliary letters give him.

Petitioner has two options. He may obtain letters of administration in Maryland which provide the scope of authority he is requesting from New York (presumably "regular" estate administration), then pursue ancillary letters in New York. Alternatively, petitioner can simply request original letters of administration for decedent's estate. This court has jurisdiction over the New York assets of the estate of a non-domiciliary. (SCPA 206.) The court notes that all the supporting documentation for a petition for administration was filed with this ancillary petition, so only a new petition need be filed. The court will accept such a petition as an amended petition and not require an additional filing fee.

Accordingly, it is ordered that the petition for ancillary letters of administration filed by Jason Dillon in the estate of{**58 Misc 3d at 431} Terry J. Dillon on June 26, 2017, is dismissed, without prejudice to the filing of an amended petition for letters of administration.