New York Will Consents Can Delay Estate Settlement

Following a person’s death, a petition may be filed with the Surrogate’s Court for the probate of the decedent’s Last Will. Usually, the person nominated as the Executor in the Will engages a New York Estate Lawyer for representation in the probate proceeding. As discussed in prior posts in this blog, a decedent’s next of kin or distributees must receive notice regarding the probate process. Such distributees may sign a Waiver and Consent which provides that they do not object to the Will. If such consent is not forthcoming, then a Citation needs to be issued by the Court and served upon these potential objectants.

Will Contests and other estate litigation can take a long time to resolve. During the delay in obtaining a resolution of the probate issue, there are many matters concerning an estate that need to be attended to. For example, assets such as bank and stock accounts need to be collected, the decedent’s debts and estate obligations such as estate and income taxes must be paid and other assets such as real estate have to be secured and maintained.

In these cases, the nominated Executors typically obtain appointment as Preliminary Executors. A preliminary executor has just about the same powers and authority as an Executor that is appointed after probate. Surrogate’s Court Procedure Act 1412 entitled “Preliminary letters testamentary” provides the guidelines for such appointment. Thus, the preliminary executor can make sure that estate settlement is not unduly delayed while the contest of the Will slowly moves along over months or years.

A recent example of the need for a preliminary executor to protect an estate from delayed administration is a decision in a case entitled Will of Mestman.   In Mestman, Dutchess County Surrogate James D. Pagones issued a decision on August 6, 2014 in which he appointed preliminary executors despite the objection of the decedent’s daughter. The Court also gave the preliminary executors the authority to sell the decedent’s real estate in order to save the estate from the continuing cost to maintain the property and prevent its wasting away. Such costs included insurance, utilities and landscaping for a house that was vacant.

I have represented many individuals in connection with probating a Will. Due to possible objections to a Will or other delays that can be caused by issues such as kinship proof, I have obtained preliminary letters testamentary for the client. This preliminary appointment is essential to safeguard the interests of the estate and its beneficiaries. The Surrogate’s Courts are aware of the benefit of such appointment and typically issue Preliminary Letters Testamentary on an expedited basis.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a New York estate or beneficiary designation, please contact me at (212) 355-2575 or email:, for an initial consultation.

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