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Court Discusses Issuing Preliminary Letters Testementary

The Facts:

On 14 December 2005, a decedent died leaving a will dated 13 September 2005 (the “2005 Will”) and a prior will dated 24 January 2003 (the “2003 Will“). The 2003 Will nominates the decedent’s daughter-one as executor and the decedent’s daughter-two as successor executor. The 2005 Will also nominates daughter-one as executor. The decedent was also survived by her other daughter, daughter-three.

Under the 2003 Will, all shares that the decedent had in any companies or corporations is bequeathed to the decedent’s two grandchildren equally and the decedent’s bank accounts to her daughters, daughter-one and daughter-three, equally. The 2003 Will further provides for bequests of tangible personal property. The 2003 Will gives the decedent’s cooperative apartment in equal shares to the two grandchildren. The remainder of the estate is bequeathed in one-third (1/3) shares to each of the decedent’s three daughters.

A New York Probate Lawyer said that under the 2005 Will, all of the decedent’s jewelry is given to the granddaughter, and the balance of the decedent’s tangible personal property located in her home to the granddaughter’s mother, daughter-one, and the daughter-one’s husband. The 2005 will further provides for a bequest of the decedent’s joint bank account located at Washington Savings Bank to daughter-one, or if daughter-one does not survive, to the granddaughter. Under Article FOURTH of the 2005 Will, the residuary estate is bequeathed to the granddaughter.

Thereafter, an application for preliminary letters testamentary ensued.

The Ruling:

The law, SCPA 1412, which governs the issuance of preliminary letters testamentary, was enacted to provide a form of letters to the named executor which would allow for the immediate administration of the estate when there may be a delay in probate. Suffolk County Probate Lawyers said the purpose was to honor the testator’s preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration, estate litigation, to be expedited and proceed as close to normal as possible and prevent contests within a contest. Although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator’s will. A person not named as an executor has no standing to seek preliminary letters. Moreover, the law provides that where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters is mandatory upon due qualification. If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

On another note, a testator’s wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Preliminary letters may be denied; however, where the nominated executor’s eligibility is at issue or where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible. Mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters.

Further, if it is in the best interest and protection of the estate and its beneficiaries to appoint a fiduciary other than the nominated executor, temporary letters may issue to the Public Administrator.

Under the law, an executor named in a later will is given a priority over an executor named in an earlier will. A Staten Island Probate Lawyer said there competing wills are offered, the court may, however, issue preliminary letters to the executor of the earlier will for good cause shown. Good cause shown has been found to exist where the circumstances surrounding the execution of the later will are so suspect that issuance of letters to the executor of the earlier will protects the parties better.

Here, daughter-two has requested that preliminary letters issue to her as a substitute executor under the 2003 Will. Thus, daughter-one, as an executor named in the 2005 Will, has a prior right to letters pursuant to the provisions of the law. Preliminary letters must issue to daughter-one in the absence of good cause shown or serious misconduct which renders her unqualified.
Daughter-two argues that preliminary letters should issue to her because she intends to commence a discovery proceeding against daughter-one, as well as the daughter-one’s daughter, her husband and other persons who have knowledge of the decedent’s assets and the events and circumstances leading to $36,000 of credit card debt on the decedent’s charge card.

The court finds that daughter-two’s allegations fail to demonstrate “good cause” or serious wrongdoing which would permit the court to nullify the decedent’s choice of fiduciary.
In conclusion, daughter-two’s application for preliminary letters testamentary predicated on her nomination as substitute executor under the 2003 Will is denied and daughter-one’s application for preliminary letters testamentary as executor under the 2005 Will is granted.

The 2005 Will dispenses with the filing of a bond. In accordance with law, even if the will dispenses with the filing of a bond, the court may require a bond if extraordinary circumstances exist. However, there are no such extraordinary circumstances here.

Preliminary letters testamentary shall issue to daughter-one upon her duly qualifying under the law, to serve without bond.

The court, based upon its broad equitable powers, however, including the power to convert or fashion a remedy based upon the facts alleged, without strict adherence to the title of the proceeding given by the petitioner deems that portion of the instant proceeding which seeks authority to commence a discovery proceeding, as an application for the issuance of limited letters of administration to daughter-two. Thus, limited letters of administration is issued to daughter-two upon duly qualifying according to law, without bond.

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