New York Probate Lawyer Blog
The function of estate planning in New York is to provide documents which reflect the intentions of the creator. Estate planning is a broad topic which in general may encompass many types of objectives. In its purest form, an estate plan consists of a Last Will and Testament. In addition, planning may also result in the establishment of a Revocable or Living Trust. This document contains similar post-death provisions but is implemented with the goal to avoid the probate process. A revocable or living trust also usually contains pre-death directions for asset management in the event of circumstances such as the creator’s incapacity.
Other aspects of planning may include advance directive papers such as a Health Care Proxy, Living Will and Durable Power of Attorney. In certain instances, a Medicaid plan may be appropriate which might include pre-death transfer of assets.
The important point is that all planning allows a person to memorialize his intensions regarding his assets and personal affairs, and the selection of executors, trustees, and agents which may be named and nominated in the papers. Courts are very sensitive to a person’s selection of executors and trustees. In particular, the nomination of an executor in a Will may take on paramount importance in many cases where the appointment of a preliminary executor is needed for immediate estate administration.
The appointment of a preliminary executor can be essential where the full probate process and the admission of a Will to probate may be delayed. A delay may occur for many reasons such as the need to litigate a Will Contest or when the identity of a decedent’s net of kin must be determined. Sometimes a kinship hearing is needed. A due diligent search must be made for next of kin (i.e., distributees).
The appointment of a preliminary executor is provided for by Surrogate’s Court Procedure Act 1412 entitled “Preliminary letters testamentary”. A preliminary executor typically has the same fiduciary powers as a permanent executor except a preliminary executor does not have the authority to distribute assets to beneficiaries. Thus, a preliminary executor can collect assets, pay bills and protect and manage estate affairs until the final probate is completed.
A recent Manhattan estate case reflects the Surrogate’s Court’s preference to appoint as preliminary executor the person who was nominated by a decedent to be the executor. In the Estate of Joseph Gordon, objections were interposed to the appointment as preliminary executor of the person nominated in the Will as executor. It was asserted that the nominee, who was 94 years of age, was not qualified to act due to advanced age and infirmity. In a decision by Manhattan Surrogate Rita Mella dated August 15, 2024, the Court noted the preference by the Court to honor a decedent’s wishes as to the selection of a fiduciary. The Court found that there was an insufficient basis to disqualify the nominated fiduciary. Instead, the Court appointed the nominated person as preliminary executor, and required the posting of a surety bond.
Estate cases, including the probate of a Will or obtaining letters of administration, can involve complex issues and estate litigation. Do you have a question regarding an estate? I have been representing clients in these matters for over forty (40) years. Call Me Now for a free confidential review of your estate 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.