An estate in New York requires the appointment of a fiduciary. Executors or Administrators are the fiduciaries who control estate settlement. Executors are appointed when there is a Last Will to be probated. Administrators are appointed when a person dies intestate (without a Will).
There are many instances when the initial probate proceeding or administration proceeding cannot be completed without extensive delays. A very common example of such a situation involving a delay is a Will Contest. When a Probate Petition is filed with the Surrogate’s the estate laws require that notice be given to the decedent’s next of kin. The New York Probate Lawyer Blog has published many posts regarding the probate procedures and the notices that must be given to family members. This notice is typically in a form called a Probate Citation.If a person who is a party to the probate case desires to contest the Will, there are a number of paths to be followed. Initially, the party may request to engage in document and witness discovery pursuant to Surrogate’s Court Procedure Act (SCPA) section 1404. Alternatively, a party can just file Objections to the Will and then engage in pre-trial discovery.
Due to the length of time involved in a Will Contest, SCPA 1412 entitled “Preliminary letters testamentary” provides for the appointment of a Preliminary Executor. The Preliminary Executor is typically the same person who has filed the probate petition and who was nominated as the Executor in the Will. The statute allows the Preliminary Executor to essentially exercise all of the powers of a permanent executor except that the Preliminary Executor cannot make distributions to beneficiaries or sell specifically bequeathed assets without consent. The important point is that by allowing the appointment of a Preliminary Executor, the estate laws facilitate the collection and protection of estate assets and the payment of estate bills and expenses. This is important to prevent the estate from being neglected during the long period of time a Will Contest may take. The appointment of a Preliminary Executor may be needed in situations other than a Will Contest when delay in the final probate decision may occur.
In a case decided on December 30, 2014 by Manhattan Surrogate Rita Mella concerning the Estate of Grossman, the Court had appointed the decedent’s daughter as preliminary executor of the estate. In Grossman, a Will with a later date than the one naming the daughter as executor was then filed with the Court by the decedent’s spouse. The spouse asked the Court to revoke the daughter’s preliminary letters and appoint the spouse as preliminary executor. The Court declined to grant the requested relief and found that since the daughter had already been serving as the preliminary executor for one year there was no need to expend resources concerning the preliminary executor dispute. The Court felt that the imposition of a surety bond would adequately protect the estate’s interests.
I have represented many persons in probating a Will and obtaining preliminary letters testamentary. Call me now for a free review if you have any questions regarding estate settlement or Will probate issues.
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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