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Interesting Facts Concerning the Appointment of a Preliminary Executor

When a person dies and leaves a Last Will and Testament, it is necessary to commence a Probate Proceeding to validate the Will. Once the proceeding is complete, the Court admits the document to probate and letters testamentary are issued to the petitioner. The person who files the petition with the Court for probate is typically the individual nominated in the Will.

Probating a Will requires the submission of numerous documents and information including the names of all of the decedent’s distributees (next of kin) and an estimated value of the probate estate. Estate lawyers in New York are familiar with the Surrogate’s Court rules and requirements regarding probate.

Sometimes the full probate can be delayed due to various issues. If an interested person is seeking to Contest the Will then the final determination regarding the validity of the Will may take months or years. The New York Probate Lawyer Blog has published many articles regarding Probate and Will Contests.

When a delay occurs, the petitioner can seek to obtain Preliminary Letters Testamentary. Surrogate’s Court Procedure Act (SCPA) section 1412 provides the procedure and substantive details regarding such appointment. The issuance of Preliminary Letters allows the nominated executor to administer the decedent’s estate while the issues concerning the final validity of the Will are determined. Estate litigation can be very time consuming.

The Court typically adheres to the desires of the decedent’s intentions and appoints the nominated executor as the Preliminary Executor unless there are specific and verifiable reasons not to do so. SCPA Section 707 sets forth the requirements for eligibility for someone to be appointed as a fiduciary. A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on December 19, 2019 entitled, “Estate of Smidt,” reflects the Court’s desire to adhere to a decedent’s wishes regarding the preliminary appointment.

In Smidt, one of two children of a decedent objected to the granting of preliminary letters to his brother. The brother was nominated as the Executor in the Will. The objectant alleged that the brother unduly influenced the decedent and was unfit to act as preliminary executor. The Court rejected his application and found that mere conclusory assertions were insufficient to prevent the preliminary appointment. It was determined that the issue of undue influence needed to be decided after a full record was developed in a Will Contest. Thus, Preliminary Letters were issued to the nominated individual.

I have represented many individuals in probate cases and Will contests. Counsel experienced in Surrogate’s Court matters are important sources for assistance in these proceedings. Call me now for a free review of your estate case. We provide reasonable and flexible fee arrangements and personal representation.

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 the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. 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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