The probate process in New York can be very complex. When a person dies and leaves a Last Will and Testament it is necessary to probate the decedent’s Will to have an Executor appointed to administer the estate. There have been many articles published in the New York Probate Lawyer Blog providing information regarding probate issues.
The presentation of a petition to the Surrogate’s Court which seeks probate of a Will essentially asks the Court to validate the Will and appoint an Executor. The Court issues Letters Testamentary to the appointed Executor.In most cases the Executor can be appointed without complications. Among the items that the Surrogate’s Court needs to grant the petition is the original Last Will, an original death certificate and affidavits from the witnesses to Will. However, as New York Estate Lawyers know, sometimes completion of probate can be delayed due to issues relating to a Will Contest, a lost original Will, Kinship questions, locating Will witnesses or other matters. When a delay occurs in having an Executor appointed, the Court can appoint the nominated Executor as the Preliminary Executor. The Preliminary Executor has almost the same powers as a fully appointed Executor. Surrogate’s Court Procedure Act Section 1412 entitled “Preliminary letters testamentary” provides the rules regarding the Preliminary Executor’s authority.
The purpose of having a Preliminary Executor appointed is so that a fiduciary can handle the decedent’s affairs pending the delay in the final probate matter. The Preliminary Executor can collect assets, pay bills and expenses and file and pay taxes. All of these powers allow the fiduciary to protect the decedent’s estate especially where Estate Litigation may delay the final appointment for extended periods of time.
A recent case decided by Staten Island Surrogate Robert Gigante on February 6, 2015 entitled Matter of Rivera provides a common example of the role of a Preliminary Executor. In Rivera the Court allowed a Preliminary Executor to sell certain real estate owned by the decedent and the decedent’s cars. This case demonstrates how a Preliminary Executor can facilitate Estate Administration while a Will contest is on- going.
I have represented many clients in probate matters and have arranged for the Surrogate’s Court to have them appointed as Preliminary Executors. If you have any questions or issues concerning the appointment of an Executor, please contact me to review your issue.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.
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