PART 129

[ACKNOWLEDGMENT REQUIREMENTS FOR FILING ABANDONED PROPERTY CLAIMS] CLAIMS FOR ABANDONED PROPERTY INCLUDING THOSE INVOLVING AN ABANDONED PROPERTY LOCATION SERVICES AGREEMENT

Section 129.1 General Provisions.

(a) The [comptroller] Comptroller shall not reveal any confidential information including the value of abandoned property to any claimant or [their] the claimant’s agent unless such person provides proof of an interest in the abandoned property and the following:

(1) a claim form, or other supplemental claim form deemed necessary by the [comptroller] Comptroller, signed by the person making claim and duly acknowledged by the person in the manner prescribed for the acknowledgment of a conveyance of real property in accordance with the Real Property Law;

(2) [in the case of a] where the claim is submitted by a [finder, the finder] person or entity acting pursuant to an abandoned property location services agreement, as that term is used in section 1416 of the Abandoned Property Law, the person or entity submitting the claim must present to the [comptroller] Comptroller [a finder agreement executed in accordance with] an abandoned property location services agreement, which complies with the requirements of section 1416 of the Abandoned Property Law, and which:

(i) lists the claimant's current address;

(ii) except where there is a separate power of attorney or other agency designation, authorizes the [finder] abandoned property location services provider to act on the claimant’s behalf to claim the property [on behalf of the claimant];

(iii) is signed by the claimant and such signature has been duly acknowledged by the claimant in the manner prescribed for the acknowledgment of a conveyance of real property in accordance with the Real Property Law; and

(iv) in the case of a claim in excess of $1000 on behalf of an estate representative appointed by a New York State surrogate’s court, including a person certified under Article 13 of the Surrogate’s Court Procedure Act, [of a New York decedent subject to section 13-2.3 of the Estates Powers and Trusts Law,] proof that the abandoned property location services agreement has been duly filed with the [appropriate] surrogate's court that appointed such estate representative, as required by [that] section 13-2.3 of the Estates, Powers and Trusts Law.

(b) Subdivision (a) of this section may be waived within the discretion of the [comptroller] Comptroller provided that the [comptroller] Comptroller determines that satisfactory proof has otherwise been submitted by the claimant or his or her representative establishing that the claimant is the owner of the abandoned property.

1. Statutory Authority: The amendment is authorized under section 1414 of the Abandoned Property Law.

2. Legislative Objectives: This revision will accomplish two primary goals: (1) to conform terminology used in the regulation to terminology added to section 1416 of the Abandoned Property Law in 2012; and (2) to reflect amendments made to section 13-2.3 of the Estates, Powers and Trusts Law in 2014. Several non-substantive technical changes have also been made.

3. Needs and Benefits: Until 2012, section 1416 of the Abandoned Property Law referred to “restrictions on agreements by claimants with a person or entity to locate abandoned property”. These agreements were historically and informally called “finder agreements” and the existing regulation used the term “finder agreement”. When section 1416 was amended the term “agreement for abandoned property location services” was used and defined. In the interests of conformity, the regulation is being amended in order to maintain uniformity in terminology.

As to the revisions made in response to amendments to section 13-2.3 of the Estates, Powers and Trusts Law (EPTL), the Surrogate’s Court Advisory Committee proposed legislation to amend EPTL section 13-2.3 to specifically exclude abandoned property location services agreements from the filing requirement when there is no estate proceeding opened in surrogate’s court and to provide that no filing is required when an estate representative is appointed but the amount to be claimed from the Office of Unclaimed Funds does not exceed $1,000. These amendments were enacted into law in September 2014.

In light of these amendments, the Department of Audit and Control and its Office of Unclaimed Funds no longer require a court certified copy of the abandoned property location services agreement where letters have not been issued to an estate representative, or the amount of the claim does not exceed $1,000. To reflect this change in statute, the Office of Unclaimed Funds is proposing to revise subdivision (a)(2)(iv) of section 129.1. Consistent with existing practices of the Office of Unclaimed Funds, the revision to subdivision (a)(2)(iv) also deletes the reference to New York decedents, since section 13-2.3 of the EPTL would appear to apply where a New York ancillary estate representative is appointed by a New York Surrogate’s Court with respect to a non-New York decedent.

4. Costs:

a. Costs to the regulated parties: Subsequent to the amendment of the rule, estate representatives will no longer be required to provide court certified copies of the abandoned property location services agreement where letters have not been issued to an estate representative, or the amount of the claim does not exceed $1,000. Therefore, the amendment will in such cases reduce costs of the regulated parties. However, estate representatives of New York estates who have entered into an abandoned property location services agreement will continue to be required to provide a court certified copy of the abandoned property location services agreement when the claim for abandoned funds is in excess of $1,000. The fees for court certified copies are currently $6.00 per page. Qualified heirs of a New York decedent making claim pursuant to a Surrogate’s Court Procedure Act section 1310 affidavit will not have to provide any court certified copy of an abandoned property location services agreement.

b. Costs to the agency, state and local governments for the implementation and continuation of the rule: The revision of this rule should be cost neutral to the agency. The costs for state and local governments should also be cost neutral as generally state and local governments do not enter into abandoned property location services agreements.

c. Sources, methodology of cost analysis: The cost of court certified copies is set forth by statute in Surrogate’s Court Procedure Act section 2402(12)(a).

5. Local Government Mandates: None.

6. Paperwork: No new paperwork is required. Claims for abandoned funds where the claimant is a New York estate representative who has entered into an abandoned property locations services agreement will continue to have to provide a court certified copy of the agreement when the claim for abandoned funds exceeds $1,000. Claims for abandoned funds where the claimant is a qualified heir of a New York decedent pursuant to Surrogate’s Court Procedure Act section 1310 and has entered into an abandoned property location services agreement will have to provide the agreement but will not have to supply a court certified copy.

7. Duplication: The rule does not duplicate, overlap or conflict with any other legal requirements of the state or federal governments.

8. Alternatives: No significant alternatives were considered.

9. Federal Standards: The rule does not exceed any minimum standards of the federal government for the same or similar subject area.

10. Compliance Schedule: It is believed that compliance can be achieved immediately upon the rules adoption.

1. Effect of Rule: Primarily, the small businesses affected by this rule will be abandoned property location services providers doing business with the Office of Unclaimed Funds on behalf of their clients. It is estimated that 282 small businesses will be affected. Local governments will not be effected.

2. Compliance Requirements: The proposed rule will not impose any new reporting, recordkeeping or other affirmative acts that a small business or local government will have to undertake to comply. The proposed rule makes conforming changes to reflect revisions of terminology used in section 1416 of the Abandoned Property Law. Additionally, the rule addresses the amendments to section 13-2.3 of the Estates, Powers and Trusts Law which eliminate the requirement that abandoned property location services agreements be filed with the surrogate’s court when no estate representative has been appointed for a decedent’s estate, or when the claim for abandoned funds does not exceed $1,000 (regardless of whether or not an estate representative has been appointed for the estate).

3. Professional Services: No professional services need be retained by small businesses or local governments to comply with this rule.

4. Compliance Costs: There will be no new compliance costs.

5. Economic and Technological Feasibility: There are no economic costs or technological requirements necessary comply with this rule.

6. Minimizing Adverse Impact: The approaches suggested by the Legislature in SAPA § 202-b(1) were not considered. It does not appear that the rule will have an adverse economic impact on small businesses or local governments since the result of the rule is a less stringent requirement in relation to the filing of abandoned property location services agreements.

7. Small Business and Local Government Participation: In order to ensure that small businesses and local governments have an opportunity to participate in the rule making process; a press release will be issued and posted on the Comptroller’s website regarding this proposed rule.

1. Types and Estimated Numbers of Rural Areas: This rule will affect all rural areas.

2. Reporting, Recordkeeping and Other Compliance Requirements and Professional Services: The proposed rule will not impose any new reporting, recordkeeping, professional services, or other affirmative acts to achieve compliance with this rule. Other than technical changes, the proposed rule makes clear that abandoned property location services agreements need not be filed with the surrogate’s court pursuant to newly amended section 13-2.3 of the Estates Powers and Trusts Law when no estate representative has been appointed for a decedent’s estate, or when the claim for abandoned funds for an estate does not exceed $1,000 regardless of whether there has been an appointment of an estate representative.

3. Costs: No new capital costs will be incurred by persons or entities in rural areas.

4. Minimizing Adverse Impact: The approaches suggested by SAPA § 202-bb(2) were not considered. It does not appear that the rule will have an adverse impact on rural areas since the proposed rule results in a less stringent filing requirement than was previously required.

5. Rural Area Participation: In order ensure regulated parties in rural areas have an opportunity to participate in the rule making process a press release will be issued and posted on the Comptroller’s website regarding this proposed rule.