In the typical case, a Will contains many different provisions concerning the disposition of a decedent’s assets. There may be specific bequests, the creation of testamentary trusts and residuary dispositions. Additionally, a Will typically has a provision in which the proposed executors, and if appropriate, trustees are identified. The designation of fiduciaries and substitute appointments by a testator is very important because it gives priority to the named persons to act in the capacity for which they are nominated. The Courts are very protective regarding respecting these appointments because the goal is to have the decedent’s choices honored unless there is a very good reason for deviation.
Sometimes, the admission of a Will to probate can be delayed due to a Will contest or other issues such as a kinship determination. If this happens, Surrogate’s Court Procedure Act Section 1412 entitled “Preliminary letters testamentary” provides the procedure for the appointment of a Preliminary Executor. A Preliminary Executor can be appointed by the Court to act temporarily before probate is complete. Such appointment insures that estate settlement can go forward and assets can be protected and collected during the time the full probate is being completed. A preliminary executor essentially has all of the powers and authority as a permanent executor except for the authority to make distributions to beneficiaries. Obviously, this is very beneficial to the estate. Also, the Will may have a provision for the waiving of a bond by the executor. The Surrogate sometimes requires the preliminary executor to post a surety bond.
There are occasions when an estate beneficiary or distributee may object to the appointment of a preliminary executor. Such claims may be based upon a number of claims such that the proposed appointee is unfit to serve as the preliminary executor. However, the Courts are very protective of the decedent’s nominees and will refuse to grant the powers to the nominees only if there is very detailed information supported by verifiable facts. Mere conclusions and unsupported claims will not suffice.
I was involved with such a case recently where I represented the individual who was seeking to have her preliminary letters testamentary renewed. The various claims made by the objectants were found to be conclusory and based only upon information and belief. The case was a Bronx estate named Estate of Scott, and was decided by Bronx Surrogate Nelida Malave-Gonzalez on March 24, 2022. As a result, my client’s preliminary letters testamentary were renewed.
I have represented clients in probate and administration estate cases throughout New York for over four decades. Call Me Now for a free confidential review of your estate or guardianship case. 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.