New York Probate Lawyer Blog
There are essentially two (2) different paths to follow for the appointment of a fiduciary after someone dies. In order to administer and settle an estate, there must be an executor or an administrator. If the decedent left a Last Will and Testament, then a probate proceeding is going to be filed in the Surrogate’s Court. This involves filing the original Will along with a petition for probate and other supporting papers.
In cases where there is no Will, the decedent is considered to have died intestate. As a result, a petition for letters of administration is presented to the Surrogate’s Court. The New York Probate Lawyer Blog contains many informative articles discussing issues concerning probate and intestate estate proceedings.
Unfortunately, the process to obtain full letters testamentary or letters of administration can take a number of months. Will Contests, kinship disputes, and other matters involving estate litigation may delay the finalization of these proceedings for long periods of time. The dilemma faced by a potential fiduciary and others interested in an estate is how to deal with current problems which can affect estate assets. For example, there may be pending proceedings in litigation concerning a decedent, or the need to sell or secure assets before values are compromised.
In these situations, an interim fiduciary is a necessity. When there is a pending probate proceeding, Surrogate’s Court Procedure Act 1412 entitled “Preliminary letters testamentary” provides the details for the appointment of a preliminary executor. Essentially, a preliminary executor can be authorized to handle all aspects of estate administration except for a distribution of assets.
When there is an intestate estate, SCPA 901 entitled “When temporary administration may be granted” provides for the appointment of a temporary administrator to engage in fiduciary functions. Both preliminary executors and temporary administrators insure that a decedent’s estate is handled and secured pending a final determination in probate or administration proceedings.
Interestingly, a temporary administrator may sometimes be appointed in a probate matter. This often occurs when a fiduciary in the probate case does not pursue some required task or when there appears to be a conflict of interest. For example, the executor or preliminary executor has a personal conflict regarding estate litigation or recovering estate assets from himself.
A recent Manhattan estate case entitled Matter of Winter, decided by Manhattan Surrogate Nora S. Anderson on September 20, 2022, involved the appointment of a temporary administrator in a probate proceeding. In Winter, a Will was being offered for probate. However, there were substantial issues regarding the validity of the Will since the decedent had been declared incapacitated in an Article 81 guardianship proceeding prior to his death. Also, the primary beneficiary in the purported Will was claimed to be in possession of funds improperly transferred prior to death. Since it was apparent that the proponent of the suspect Will had a conflict of interest with regard to pursuing the claims regarding the conversion of the decedent’s assets, the Court appointed a temporary administrator. In this case, the parties who questioned the validity of the Will were granted limited letters of administration to investigate and pursue litigation to recover assets which they claimed belonged to the estate.
As is shown by Winter, the procedures and statutes concerning settling an estate can be complicated. Do you have a question or problem involving an estate or maybe a guardianship case? I have been representing clients in these matters for over 40 years. Call Me Now for a free confidential review of your issue. 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.