COVID-19 UPDATE: Firm Operations Continue Uninterrupted - Learn More About How We Are Helping Our Clients

What Is a Preliminary Executor and Why Should The Court Appoint One

When a person engages in estate planning and preparing a Last Will and Testament, numerous items of information and directions are set forth in a Will.  Along with providing provisions naming beneficiaries and describing distributions of assets, a testator needs to designate fiduciaries such as Executors and Trustees.

The selection of Executors is a very important aspect of planning an estate since such designees are to be responsible for handling all estate affairs and settling the estate.  Typically, the testator nominates a primary executor as well as successor Executors.   The New York Probate Lawyer Blog has published many articles concerning the selection of fiduciaries and other aspects of estate administration.

The Executor of a Will is appointed when the Will is admitted to probate.  At that time Letters Testamentary are issued to the Executor.  However, there are occasions when the probate of the Will may be delayed.  Such delays may be due to a Will Contest or the search for next of kin.  Also, there may be a need to locate the original signed copy of a Will or an attesting witness who is needed to sign an affidavit.

Since such problems can delay probate for months and sometimes years, it is necessary that estate assets, taxes, claims and other matters be attended to quickly.  The solution to this issue is to have the court appoint the designated Executor as a Preliminary Executor.  Upon reviewing such appointment the Court will issue Preliminary Letters Testamentary.

The appointment of a Preliminary Executor is provided for by Surrogate’s Court Procedure Act (SCPA) Section 1412 entitled “Preliminary Letters Testamentary”.  A Preliminary Executor usually can engage in all of the functions and has all of the powers of a fully appointed Executor.  The main exception is that the Preliminary Executor is not permitted to make distributions for estate beneficiaries.

When appointing a Preliminary Executor the Surrogate may provide some restrictions or requirements.  The Court may direct that the Preliminary Executor obtain a Surety Bond to insure against estate loses.  There may also be limitations regarding certain fiduciary activities such as the settlement of lawsuits or the sale of estate assets without additional approval by the Court.

A recent Staten Island estate case decided by Richmond Surrogate Matthew Titone on April 16, 2019 entitled Matter of Estate of Whittemore, concerned the appointment of a Preliminary Executor.  In Whittemore, the nominated Executor sought Preliminary Letters since a Will Contest was anticipated.   The beneficiaries objected to the appointment and sought the appointment of the Public Administrator instead.  The Court decided to appoint the nominated Executor as Preliminary Executor.   However, the Court placed restrictions on the fiduciary’s powers which provided that the Preliminary Executor (i) could only search for additional assets but could not collect the assets without the further order of the Court;  (ii) execute HIPPA forms; and (iii) appear as a party in related estate proceedings.

I have represented numerous clients throughout New York City and the surrounding counties in Probate proceedings regarding the appointment of Executors and Preliminary Executors.  Call me now if you have an issue concerning an estate for a free discussion.  We offer reasonable and flexible free arrangements.

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 Queens County and the Bronx.   If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

Contact Information