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Preliminary Letters Testamentary May Be Limited By The New York Surrogate’s Court

When a person dies and leaves a Last Will and Testament, it is necessary to commence a probate proceeding to have the Will validated.   Probate in New York requires that various documents be filed with the Surrogate’s Court.  The original of the Will needs to be provided along with an original death certificate.   The petitioner is typically the person named as the Executor in the Will.  A Probate Petition is prepared which contains information including the date of the Will, the names of the attesting witnesses, the estimated value of the estate and the names and addresses of all parties interested in the matter.  These parties include the decedent’s distributees (next of kin) and the beneficiaries named in the Will.

There are many situations that may delay admitting a Will to probate.  One common occurrence is a Will Contest.  If the decedent’s distributees file Objections to the Will, then estate litigation associated with a Contested Will can delay final probate for a year or more.

Another delay may result where it is difficult to identify or locate the decedent’s distributees.  If a due diligence search needs to be completed before probate, there may be a delay for many months.  The New York Probate Lawyer Blog has posted many articles concerning Kinship, Probate and Will Contests.

When there is a delay in probate, the Court may appoint a Preliminary Executor pending the final outcome of the probate case.  Surrogate’s Court Procedure Act section 1412 entitled “Preliminary letters testamentary” provides the procedures and guidelines regarding the granting of these letters.  The statute gives the Surrogate discretion regarding the extent of the authority that is given to the Preliminary Executor.  While the Preliminary Executor can safeguard and collect assets, the Court may be concerned that extensive powers are unwarranted before the probate process is complete.

Two recent cases decided by the Courts provide an example of the Court’s use of its discretion.  In Matter of Estate of Laszlo, decided by Richmond County Surrogate Matthew Titone on January 28, 2019, the Court allowed the Preliminary Executor limited authority to marshal and preserve estate assets.  However, in this Staten Island estate case the Court specifically restricted the Preliminary Executor from distributing any assets.

In Estate of Wang, a Manhattan estate case, Manhattan Surrogate Rita Mella, on February 11, 2019, restricted the Preliminary Executor to prosecuting a certain cause of action pending the determination of a petition which sought the revocation of the Preliminary Letters.

I have represented clients in Probate cases and Will Contest litigation where there was a Preliminary Executor.   If you have an issue concerning Probate or an Estate case, call me now for a free review.  Reasonable and flexible fee arrangements are available.

 

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 Brooklyn and Manhattan.   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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