There are various types of fiduciary appointments granted by the New York State Surrogate’s Court. The Court may appoint an Executor and issue Letters Testamentary. This occurs in connection with the probate of a Last Will and Testament. If the decedent dies intestate, the Court appoints an Administrator and issues Letters of Administration. The New York Probate Lawyer Blog has published many articles discussing the probate and administration process.
Sometimes when the Court proceedings for the probate of a Will or an intestate administration proceeding is delayed, the Surrogate might appoint a Preliminary Executor or Temporary Administrator. This may occur where there is a Will Contest or Kinship cannot be determined without a kinship hearing.
An important aspect of any fiduciary appointment is the extent of powers granted to the fiduciary by the Court. Essentially, the fiduciary can only perform those functions which the Court or the estate laws allow. Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ powers” lists many types of authority which an Administrator or Executor might possess, such as the power to sell assets, invest assets, pay expenses, collect income and engage in litigation on behalf of an estate. However, in many instances, the Court Decree appointing the fiduciary may restrict or limit the authority.
For example, it is very common that when an Administrator is appointed, the Court will prohibit the Administrator from selling the decedent’s real estate without further approval from the Court and the filing of a surety bond. Also, the Court may limit the value of assets that can be collected. In such a case, an application can be made to the Court to expand the authority under the letters of appointment.
It is important for fiduciaries to be aware of any limitations that may apply to their powers and to anticipate whether there is a need to obtain additional Court authority. Usually, the restrictions are specifically printed on the letters so that anyone who needs to know about the appointees’ powers can easily see the limitations. A fiduciary should not and cannot exceed their authority.
A recent Staten Island estate case entitled Estate of Ianni v. Reitano decided by Richmond County Supreme Court Justice Ralph Porzio on March 22, 2021 provides a good example of the effect of limited authority. In Ianni, the estate Administrator was granted limited letters with only the narrow powers to commence Surrogate’s Court discovery proceedings to search for assets. Notwithstanding this limitation, the Administrator commenced causes of action in Supreme Court for malpractice, conversion and a declaratory judgment. The Court ended up dismissing these lawsuits since the Administrator lacked authority or standing to file such actions on behalf of the estate.
I have represented many individuals regarding the appointment of Executors, Administrators and Trustees. Call Me Now for a free confidential review of your issue regarding fiduciary powers or any other estate or guardianship matter. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and 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 free consultation.