The New York Probate process has many different aspects and requirements. The probate of a Last Will begins with the preparation of a Probate Petition which is to be filed with the Surrogate's Court. Many of the basic Surrogate's Court forms can be found online at www.nyccourts.gov/forms/surrogates. The petition is usually filed with the Surrogate's Court in the County where the decedent was domiciled i.e, where he or she maintained a primary home. So depending upon the decedent's home, there may be a Westchester County Probate or Nassau County Probate, etc.
The Probate Petition is required to contain: (i) information about the petitioner, who is usually the Executor named in the Will; (ii) information about the decedent such as date of death, address and citizenship; (iii) information about the purported Last Will such as its date and the names of the witnesses to the Will; (iv) the identity of the decedent's distributees i.e., next of kin; and (v) information about the value of the personal and real property comprising the estate.
In many instances the probate of the Will may be delayed. Probate is essentially the method by which the decedent's Will is validated as authentic by the Court so that the Will provisions control the disposition of the decedent's estate assets. This delay may be due to a number of circumstances such as difficulty in determining the decedent's distributees that raise issues regarding kinship or a Contested Will that might result in Surrogate's Court litigation lasting many months or years.
New York Trust and Estates attorneys are familiar with these types of delays and regularly counsel the named Executor to apply to the Court for appointment as Preliminary Executor. A Preliminary Executor is a temporary executor that can be appointed while other issues affecting the probate of the Will are resolved. Surrogate's Court Procedure Act 1412 entitled "Preliminary letters testamentary" provides for this type of appointment. A Preliminary Executor typically has most of the powers that an Executor would have after probate is complete. Thus, a Preliminary Executor can collect the decedent's assets, open an estate bank account, file estate tax returns, pay bills and expenses and generally engage in all aspects of Estate Administration. However, the Preliminary Executor does not have the power to distribute assets to estate beneficiaries.
The Court has the authority to deny the application for Preliminary Letters in the best interest of the estate. For example, if Objections were filed to such appointment and the Court found that the proposed Preliminary Executor's actions raised bona fide questions of undue influence, breach of fiduciary duties, or other wrongdoing, the Court could appoint someone other than the nominated Executor in the Will.
In most Surrogate's Courts such as Manhattan or Queens Surrogate's Court, the appointment of the Preliminary Executor is not a lengthy process. The Court must be advised as to the assets and liabilities of the estate and can require the appointee to obtain a Surety Bond.