On or about September 13, 2024, Petitioner Denise E. Steerman filed a petition seeking to probate an instrument dated October 8, 2019, purporting to be the Last Will and Testament of the decedent, James E. Steerman, aka James Everett Steerman.

The Will nominated the decedent's parents as co-executors: James B. Steerman and Denise E. Steerman. By acknowledged instrument dated September 6, 2024, James B. Steerman renounced all right and claim to Letters Testamentary under the Will.

By Decree dated September 16, 2024, the Last Will and Testament of the decedent was admitted to probate. On that same date, Letters Testamentary were issued to the remaining nominated executor, Denise E. Steerman.

The probate petition identified the value of the estate as being greater than $500,000. The filing fee in a probate proceeding for an estate with a value exceeding $500,00 is $1,250.00 [SCPA §2402(7)]. The Chief Clerk collected that fee at the time that the probate petition was filed.

Article Eighth of the Will states, in relevant part, "at any time when only one individual is acting as Executor or as Trustee hereunder, such individual is authorized to appoint, by acknowledged written instrument filed with the appropriate court, an individual, or a bank or trust company, to act as Co-Executor."

On October 15, 2024, the executor and the decedent's sister, Amanda Lee Steerman, filed a petition seeking to appoint Amanda as co-executor of the estate pursuant to Article Eighth of the Will. At the time of such filing, the Chief Clerk directed petitioners to pay a $1,250.00 filing fee, based upon the value of the estate [SCPA §2402(7)].

On October 25, 2024, Petitioners filed an application asserting that the estate should not be required to pay the same $1,250.00 filing fee twice. Instead, Petitioners ask the Court to fix the filing fee at $45.00 pursuant to SCPA §§1502 and 2402(1), based upon the filing fee applicable to the appointment of a trustee.

The Court agrees that the filing fee should be set at $45.00, but not by relying on the filing fee for the appointment of a trustee. By their express terms, SCPA §§1502 and 2402(8)(a) are only applicable to the appointment of a trustee. While trustees and executors are both fiduciaries, the duties of each are distinct. [Olcott v. Baldwin, 28 Bedell 99, 190 NY 99 (1907)]. Therefore, the filing fee for an appointment of a trustee has no application to a petition for the [*2]appointment of a co-executor.

Likewise, SCPA §2402(1) only applies to a petition that seeks to commence a probate or an ancillary probate proceeding. Here, the petition that commenced this probate proceeding was filed on September 13, 2024, and the applicable filing fee was paid at that time. SCPA §2402(1) has no bearing on a subsequent application to appoint a co-executor once the probate proceeding has been commenced and the filing fee paid.

Rather, the application for the appointment of a co-executor pursuant to the terms of a probated Will falls within the classification of "proceedings not otherwise provided in this act" [SCPA §2402(6)]. In those instances, the statute sets the applicable filing fee based not upon the value of the estate, but on the value of the subject matter of the petition (id.)

The sole subject matter of the current petition is the appointment of a co-executor for a probated Will. The value of this subject matter is not the value of the assets of the estate, as it would be for a petition to commence probate. Rather, the relief sought in this proceeding "is limited and specific" and its subject matter "has no actual monetary value." [1989 Op. St. Comp., Opinion 89-49]. Thus, because the value of the subject matter of this proceeding is less than $10,000, SCPA §2402(7) sets the applicable filing fee at $45.00.

This constitutes the Decision and Order of the Court.