Mr. Mark Smith, LL.M.
Certified Legal Documents Preparer
(800) 590–6698 (Telephone)
cldp@mail.com (E-Mail)
https://cldpmarcsmith.com (Website)
American Bar Association No.: 6036858
A set of apartment buildings in New York City’s Queens borough, where Lubov Dor is suing local Surrogate’s Court officials over their refusal to waive hundreds of dollars in filing fees as she looks to claim inheritance on the co-op where she lived with her late husband. (iStock.com/Adonis page)
The only valuable inheritance Lubov Dor, 61, was to receive from her late husband after he died last March were shares in a co-op apartment where they lived in Long Island City, a Queens, New York, neighborhood facing the East River.
Because her husband died without a will, Dor, a Russian-born seasonal election worker who lives off her Social Security check, had to go through Queens Surrogate’s Court to formally inherit the property.
But there, she faced a steep obstacle: a court filing fee of $625 — more than half of her monthly income. Paying the fee would have meant missing her monthly co-op maintenance and homeowners insurance payments — and the risk of losing her 10th floor apartment.
“I have almost no money left to pay for anything. If I have to pay for the court fee, that means I have to borrow more money,” Dor told Law360. “I’m very upset.”
Although it’s possible for litigants in New York to get their fees waived if they can’t afford to pay them, in Dor’s case, the Queens Surrogate’s Court refused to do so. Faced with the prospect of becoming homeless if she paid the fee, Dor went a different way: she sued the court system.
In a petition filed in November by Queens Legal Services, a legal aid provider assisting low-income people, Dor asked the New York Supreme Court to compel the Surrogate’s Court to waive her fees.
Dor’s case is scheduled to be heard in late February. In the meantime, Christopher Newton, an attorney with Queens Legal Services representing Dor, said he’s in talks with counsel for court officials over a possible settlement.
“We’re hoping that a settlement with [the New York Office of Court Administration] would go beyond this exact case, and would involve some sort of directive from OCA to the clerks throughout the state making sure they know how to honor these fee waivers broadly,” Newton said.
House-Rich, Cash-Poor
Legal actions like Dor’s are pretty rare, but her story is a common one.
For years, low-income New Yorkers seeking to inherit property have faced Surrogate’s Court fees they cannot afford. This can lead to delays for heirs in securing the title of their deceased relatives’ home under their own names. In some cases, properties can become prey for aggressive real estate players.
Jeffrey P. Nieznanski, the supervising attorney at Legal Assistance of Western New York, which services 14 counties, told Law360 he asked to have fees waived for two indigent clients he was representing in a pair of Surrogate’s Court matters, but that both requests were denied.
One of those cases involved an 83-year-old woman, Ruth Avery, who in 2016 sought to inherit the home where she had lived with her husband for about 40 years. The woman was in debt and had no other assets other than the house, the gross value of which was estimated to be less than $100,000. Rochester’s Monroe County Surrogate’s Court refused to waive her filing fee of $280.
“Your representation of your clients is to be commended, but the filing fees must be paid,” Monroe County Surrogate at the time, John M. Owens, told Nieznanski in a letter explaining the denial.
“The best that the Surrogate’s Court would do for us is just give us an opportunity to pay later instead of paying right up front,” Nieznanski said. “But nevertheless, they refuse to go by the … law.”
Filing fees in New York’s civil courts mostly stick to a schedule that can run the gamut from the $45 it costs to file a motion to the $210 it costs to file a new complaint. However, in Surrogate’s Court, which has jurisdiction over matters such as the administration of estates, fees can be steeper and depend on the value of the property at stake.
By state law, Surrogate’s Court filing fees are set based on the gross value of an estate, and do not account for expenses such as outstanding mortgages, maintenance fees, homeowners insurance or repairs, as well as liens for unpaid taxes and utilities.
The fees can run anywhere from $45 for property valued at less than $10,000 up to $1,250 for an estate worth $500,000 and over. For Dor, the fee was calculated based on the gross value of her husband’s shares in the co-op, which her attorney estimated at $499,000.
Litigants who are unable to pay can make a motion to qualify for what state law calls “poor person” status and ask the court to waive them. While the motions require supporting documentation, such as bank statements, Social Security payment notices and other proofs of income, the law also allows legal aid providers representing indigent clients to file certifications of a client’s poor person status based on their own assessment of a person’s finances.
According to the law’s text, the court “shall” waive the fees in cases where certifications are filed.
But legal aid attorneys on both sides of the state say fees are almost never waived. In some cases, the certifications are rejected by clerks, who either request more documentation or simply tell the litigants that they need to file motions. When motions are filed, meanwhile, attorneys say that judges often deny them.
“The court says, ‘Well, you have this asset … and it doesn’t matter what your income is, because you’ll be able to sell the house, or whatever, and so will you be able to afford to pay the filing fee,’” said Newton, the Queens Legal Services attorney representing Dor.
But realistically, that is not always the case, attorneys say.
Pamela Lanich, a managing attorney at the Legal Aid Bureau of Buffalo with more than a decade of experience in foreclosure defense, told Law360 that heirs can sometimes fall behind on mortgage and tax payments that can leave a property facing foreclosure.
Even in those circ*mstances, she said, Surrogate’s Courts still demand court fees.
“They just don’t have the upfront money to put in to go through the Surrogate’s Court process to then become the legal owner of the property,” Lanich said. “Six months might pass, and that client has not been able to come up with that fee.”
And many people like Dor inherit property they don’t wish to sell. Rather, they seek the peace of mind that comes with securing their homes under their names.
“I’m not planning to sell. I have to live somewhere. Otherwise, I become homeless and I go to the shelter,” she said.
Nieznanski said low-income people seeking to inherit the homes where they live are put in a Catch-22.
“You can’t sell a few feet out of your front yard or backyard to pay a filing fee,” he said.
Another barrier for fee waivers is that, under state law, all possible beneficiaries of an estate must be unable to pay the fees — and must provide proof — in order to qualify.
“That just takes a phenomenal amount of coordination that simply is unrealistic,” said Samantha R. Axberg, a staff attorney at Neighborhood Legal Services in Buffalo, New York.
Surrogate’s Courts don’t hold hearings where judges can assess an heir’s ability to pay the filing fees, or hear the reasons why any information might be missing, for instance, because of an unresponsive sibling.
“That’s a gray area of the law,” Axberg said.
When Fees Delay Inheritance and Invite Speculation
New York Civil Practice Law and Rules, Section 1101
(d) Waiver of fee in certain cases. Except as otherwise provided in subdivision (f) of this section, if applicable, a plaintiff may seek to commence his or her action without payment of the fee required by filing the form affidavit, attesting that such plaintiff is unable to pay the costs, fees and expenses necessary to prosecute or defend the action, which shall be available in the clerk’s office along with the summons and complaint or summons with notice or third-party summons and complaint. The case will be given an index number, or, in courts other than the supreme or county courts, any necessary filing number and the application will be submitted to a judge of the court. If the court approves the application, the plaintiff will by written order be given notice that all fees and costs relating to the filing and service shall be waived. If the court denies the application, the plaintiff will by written order be given notice that the case will be dismissed if the fee is not paid within 120 days of the date of the order.
(e) When motion not required. Where a party is represented in a civil action by a legal aid society or a legal services or other nonprofit organization, which has as its primary purpose the furnishing of legal services to indigent persons … all fees and costs relating to the filing and service shall be waived without the necessity of a motion, and the case shall be given an index number, or in a court other than the supreme or county court, an appropriate filing number, provided that a determination has been made by such society, organization or attorney that such party is unable to pay the costs, fees and expenses necessary to prosecute or defend the action, and that an attorney’s certification that such determination has been made is filed with the clerk of the court along with the summons and complaint or summons with notice or third-party summons and complaint or otherwise provided to the clerk of the court. […]
In addition to the delays they can cause for heirs, Surrogate’s Court proceedings stalling due to unpaid fees may also open the door to aggressive real estate practices that can result in homes being taken away from families that have owned them for years.
In instances when multiple possible heirs to a deceased relative fail to resolve ownership of a property, it can give speculators an opportunity to swoop in and convince one of them to sell a minority interest. That allows the speculators to trigger a partition action in which the entire property is sold at a judicial auction for amounts well below market prices. And in situations where heirs are low-income, the speculator is often the only party with the cash available to make a bid.
“These properties are placed at risk of foreclosure and at the mercy of predators seeking to divest heirs of the value of their inheritances and obtain properties in gentrifying neighborhoods,” Newton, Dor’s attorney, said in her petition.
Attorneys say the aggressive practice has transformed neighborhoods across the state, and particularly in New York City, forcing longtime residents out and opening the door for gentrification.
The issue had become so serious that, in 2019, the state Senate enacted a law establishing some protections for co-owners on inherited property, including requiring courts to order an independent appraisal to determine the property’s fair market value.
Axberg said that obstacles people face in transferring generational wealth like property, even when they are represented by an attorney, has contributed to there being numerous vacant and abandoned properties in Buffalo.
“Surrogate’s Court is expensive, it’s complicated,” she added. “There’s tons of houses that are not on the market that should be on the market, but are estate properties. And if there was better access to Surrogate’s Court, we wouldn’t have that issue.”
How Surrogate’s Courts Handle Fee Waivers
How Surrogate’s Courts operate can vary widely from one county to another, attorneys say. While Dor has faced challenges getting her fees waived in Queens, some attorneys say the process is easier in courts in Brooklyn and Manhattan.
Her experience with Surrogate’s Court began last June, when a Queens Legal Services attorney began inheritance proceedings on her behalf by filing a petition to inherit her husband’s co-op shares along with a certification that said she didn’t have money to pay the filing fee.
A clerk declined to accept the certification and told Dor’s lawyer that she needed to file a motion for poor person status instead. As Dor’s attorney continued pressing the court to accept the certification, Dor’s petition stalled until October, when it was ultimately scrapped because she failed to pay the filing fee.
“They were not going to consider [the certification] whatsoever,” Newton said. “We’ve seen both in our individual experience and anecdotally hearing from other providers … Surrogate’s Court clerks do not accept these certifications. And the motions are almost never granted.”
Janet Tucker, the chief clerk for the Queens Surrogate’s Court, acknowledged to Law360 by phone that, in Dor’s case, “a clerk made a mistake,” but said it was an isolated incident.
Tucker denied that the clerks systematically reject no fee certifications. She said clerks sometimes ask for supporting documents, but otherwise accept them.
“This situation is all predicated on one instance, when a clerk asked for something that was out of the norm. It is not the normal procedure of this court,” Tucker said.
But the issue has also come up elsewhere.
On Staten Island, Steven Karboski tried unsuccessfully to proceed as a poor person as he looked to inherit his deceased mother’s home.
While he submitted a certification to the Surrogate’s Court in Richmond County, where Staten Island is located, through legal aid provider Grow Brooklyn, a judge declined to accept it and asked that Karboski, who lived off a $750 monthly Social Security check, file a no-fee motion instead. Karboski complied, but in December 2018, the judge ultimately denied the motion.
“While [Mr. Karboski’s] income may be limited, there are numerous avenues available to him that would allow him to pay the required $625 filing fee,” the judge said in an order.
“This is kind of the heart of the issue,” Charles Harris, an attorney at Grow Brooklyn, told Law360. “He can’t do anything with the equity without a title in his name.”
Ronald M. Cerrachio, the chief clerk of the Richmond County Surrogate’s Court, told Law360 that his court regularly accepts certifications and motions to proceed as a poor person.
“Any application is immediately accepted and reviewed by the law department and the surrogate, and a decision is rendered,” Cerrachio said.
He said he did not have information on how often they are granted.
In Monroe County, where the waiver petition that Legal Assistance of Western New York filed on behalf Ruth Avery was denied, a Surrogate’s Court clerk told Law360 that the court there also accepted and gave due consideration to applications for fee waivers in inheritance proceedings.
But in Erie County, where Buffalo is the seat, Lanich said that there appears to be no way to request a fee waiver in Surrogate’s Court proceedings, despite the law allowing such a process. Lanich, of Legal Aid Bureau of Buffalo, got confirmation of that last month when she called the clerk for Surrogate’s Court Judge Acea M. Mosey to inquire.
“No fee waivers,” Lanich recalled the clerk saying. “Our county does not waive fees.”
Judge Mosey and the court’s chief clerk did not respond to requests for comment.
Al Baker, a spokesperson for the New York State Unified Court System, said the courts were taking steps to address the issue highlighted in Dor’s legal action.
“The court system is aware of assertions relating to the fee waiver applications of certain litigants represented by legal services providers … and is preparing new surrogate-court-specific forms and guidance for our clerks systemwide on the relevant statutes,” Baker said. “These steps will help ensure that litigants eligible for fee waivers are treated appropriately.”
Advocates are Fighting to Eliminate Fees
In a 2022 report, New York State’s Permanent Commission on Access to Justice concluded that, as currently structured, the fee waiver statute was a significant obstacle for low-income litigants. The procedural requirements for fee waivers are even more burdensome for unrepresented litigants who struggle to navigate the motion process, which lacks clear legal standards and proof requirements, the report said.
“Fee waivers are critical to ensuring court access for litigants without sufficient means to pay required court fees. Yet, the current law establishes a complex and inequitable process that stigmatizes litigants and creates numerous procedural hurdles that hinder their ability to obtain fee waivers that are necessary to pursue their cases,” the commission said.
While a number of campaigns have broadly sought to limit or abolish court fees altogether, their focus has largely been on criminal fees and surcharges, which advocates say have a disproportionate impact on low-income criminal defendants and people of color.
Advocates for fee elimination also lament what they describe as a lack of transparency on how much revenue is raised through court fees.
In its 2021 annual report, the New York Office of Court Administration said it collected a grand total of nearly $724 million in fees and fines. The office does not, however, publish data on how much money is collected from specific courts.
“Transparency is a major issue here,” said Zach Ahmad, a senior policy counsel at the New York Civil Liberties Union who has been campaigning for a bill seeking to eliminate criminal justice fees. “It should not be as difficult as we found it to be to find information on how much the state is taking in from which types of court fees, and how they’re being imposed.”
While it’s unclear how much of the state’s overall fee revenue they produce, OCA data shows that Surrogate’s Courts handle only about 6.5% of the state’s total volume of court filings.
“The court is very protective of filing fees, because I’m sure much of their budget is derived from that,” Newton said. “But I don’t think it’s fair to try to make up the budget on the backs of the New Yorkers who can least afford to pay it.”
Mr. Mark Smith, LL.M.
Certified Legal Documents Preparer
(800) 590–6698 (Telephone)
cldp@mail.com (E-Mail)
https://cldpmarcsmith.com (Website)
American Bar Association No.: 6036858
Hi. My name is Mark Smith, and I am a Certified Legal Document Preparer, offering Affordable Clerical Services to Attorneys and Self-Represented Litigants. I offer Research, Document-Formatting, Transcription, Proof-Reading, Printing, along with Document Retrieval and Filing Services.
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Since then, I have been working as a Certified Legal Document Preparer enabling attorneys’ access to quality paralegal services with affordable hourly rates so they too can enjoy the benefits of having a skilled, professional, and timely Paralegal to take the minutia of the law out the picture so they can spend time focusing on the issues so that justice can prevail on the merits!
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Mr. Mark Smith, LL.M.
Certified Legal Documents Preparer
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cldp@mail.com (E-Mail)
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American Bar Association No.: 6036858
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