What Is an “Advice and Direction” Proceeding in New York Surrogate’s Court

When high-stakes disputes arise in the administration of trusts or estates, especially those involving real property, significant assets, or family businesses, fiduciaries are often required to make complex decisions that carry legal, financial, and emotional consequences. In these moments, a powerful but carefully limited legal tool becomes available in New York: the Advice and Direction proceeding under Surrogate’s Court Procedure Act (SCPA) § 2107.

What Is an Advice and Direction Proceeding?

SCPA § 2107 allows fiduciaries—executors, administrators, or trustees—to petition the Surrogate’s Court for legal guidance in two distinct situations:

When the value of estate property is uncertain or depends on the time or manner of sale.

For example, a fiduciary may seek the court’s direction on whether to sell a partially developed real estate asset now, wait for market conditions to improve, or settle on a method of sale.

In extraordinary circumstances involving:

Complex valuation or tax issues,
Conflicts among beneficiaries or co-fiduciaries,
Disputes involving ownership percentages or interpretation of trust language.

Critically, the court need not entertain the petition if doing so would merely substitute its judgment for that of the fiduciary. The Surrogate’s Court is not designed to second-guess every fiduciary decision; it steps in only when legal uncertainty or true complexity justifies its involvement. Indeed, the Surrogate Court is not permitted to substitute its judgment for the fiduciary’s judgment and lacks power or authority to direct the sale of any assets.

Why Would a Fiduciary Seek Advice and Direction?

The primary reason is protection. If a fiduciary obtains authorization from the court under SCPA § 2107, and substantially complies with that direction, they are shielded from liability, even if the outcome is financially unfavorable to the estate. This is particularly valuable in high-asset estates or trust matters where large dollar amounts, family dynamics, or sensitive business issues are at play.

It’s a strategic way for a fiduciary to act confidently and transparently, while reducing the risk of future disputes, objections, or claims of mismanagement.

How Does it Work?

A fiduciary must file a petition with the Surrogate’s Court, clearly identifying:

The legal or financial uncertainty involved.
The specific action or decision that requires guidance.
The facts giving rise to the need for court intervention.

Courts carefully scrutinize these petitions. If the underlying will or trust document is ambiguous, a separate legal tool—a construction proceeding—may be more appropriate to clarify the meaning of the document. In contrast, if the terms are clear but the application of those terms in a real-world situation is complex, then an advice and direction proceeding may be warranted.

What are Common Examples?

Based on prior cases and experience, examples include:

Two co-owners of a property placed it in a trust with unequal interests. After one dies, the surviving grantor seeks guidance on how to proceed with selling or completing construction on the property, especially when the beneficiaries disagree.
A fiduciary must decide whether to liquidate or hold onto an estate’s interest in a closely held business, but the value and timing are uncertain and impacted by market conditions or internal disputes.
A trustee is confronted with conflicting tax treatment options that will affect beneficiaries differently, raising the risk of litigation if the decision is challenged.
A Trustee contracted with a third-party to purchase an estate asset, but then chose to rescind the contract to sell the asset to an estate beneficiary.

In each of these scenarios, the fiduciary faces extraordinary complexity, and court direction offers both clarity and legal cover, including shielding the fiduciary, trustee, or executor from legal liability.

At the Glennon Law Firm, we help clients, including business owners, professionals, and trustees, navigate these pivotal decisions with clarity, precision, and protection. If you are facing concerns related to a similar issue or if you have questions about your trusts or estates situation, please feel free to contact us here. You may learn more about us and how we operate by visiting these pages: About Us and What Sets Us Apart.

To learn more about topics on fiduciary duties, you may want to review these other firm blogs:

This blog post is for informational purposes only and does not constitute legal advice. For specific legal counsel, please contact our office directly.