Last Wills are part of estate planning. The contents of the Will contains numerous provisions dealing with the distribution of estate assets. There can be pecuniary bequests which provide for a definite amount of money to be given to a beneficiary. There can also exist residuary provisions that direct the manner in which the balance of an estate is to be disposed of.
One of the most important provisions in a Will is the language that is concerned with the appointment of an Executor. The Executor is the person who is responsible for administering the probate estate. After a Will is admitted to probate, the Court issues letters testamentary to the nominated Executor. The nomination of an executor in a Will is essential.
This is the person that the testator trusts with his estate. The New York Probate Lawyer Blog has posted many articles concerning Executors and other estate fiduciaries such as Administrators of intestate estates and Trustees.
Typically, the Executor does not have any authority to protect the estate and collect assets and pay expenses until the probate process is complete. In many situations, the probate of a Will may take many months or even longer. These delays can be caused by Will Contests. Another reason that probate may be delayed is due to a search for the decedent’s heirs at law. These next of kin (i.e. distributees), must be given notice concerning the probate process.
When a delay in probate appears to be occurring, the nominated executor can be appointed as the Preliminary Executor. Surrogate’s Court Procedure Act (SCPA) Section 1412 entitled “Preliminary Letters Testamentary” provides the guidelines for the Preliminary Executor.
Essentially, a Preliminary Executor has the same powers as an Executor except for the authority to make estate distributions or to sell specifically devised estate property. It is very beneficial for the estate to have a Preliminary Executor. Such appointment allows the estate assets to be collected and protected and for the estate liabilities and expenses to be attended to. The Court typically appoints the nominated Executor as the Preliminary Executor.
In a recent case entitled Estate of Simmons decided by Bronx Surrogate Nelida Malave-Gonzalez on September 12, 2017, one of the decedent’s grandsons objected to the appointment of the preliminary executor. The Court dismissed the Objections. The Court recognized that unless there was clear evidence of a statutory ground for disqualification, mere conclusory assertions regarding wrongdoing could not interfere with a testator’s choice of a fiduciary.
I have represented many individuals in probate proceedings and obtaining Preliminary Letters Testamentary. Call me now for a free discussion if you have a question regarding probate or estate administration.
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.