Published on:

Court issued preliminary letters over objections.  In re Scott (N.Y. Surr. Ct. 2022)


In In re Scott the Surrogate’s Court of Bronx County considered whether to extend preliminary letters testamentary over objections.

The petitioner, the decedent’s step daughter, was nominated in the decedent’s December 21, 2019 will to serve as the executor. The decedent died on January 30, 2020.  On July 31, 2020, the court issued an order granting preliminary letters testamentary to the petitioner.

“Letters” are an order issued by the Surrogate’s Court that gives an administrator legal authority to manage the estate of a decedent.  Typically they are issued an the beginning of a probate case when the will is admitted to probate. Preliminary letters are temporary letters that typically expire after six months.  They are issued to an executor nominated in a will that gives them limited authority when there is some sort of delay in the probate proceedings.  In this case, the delay related to an unresolved jurisdictional issue.

The preliminary letters expired on January 31, 2021. On July 15, 2021, the objectant filed a petition seeking letters of temporary administration.

On October 27, 2021 the petitioner filed her “Report of the Preliminary Executrix.” Included with the report was an application to extend her preliminary letters. In her response, the objectant opposed the extension.

Objection to extension
Typically the reasons for disqualification include wasting assets, failing to follow a direction of the court, fraudulently obtained letters, failure to notify court of change of address, removing estate property from the state, and failing to account.

To support her opposition to the extension request, the objectant alleges that the following fiduciary breaches:

  • Misstatements and omissions in the preliminary executor’s report that understate the estate’s debts
  • Failure to account for certain estate assets, including the proceeds of a life insurance policy, an alleged annuity payment, rental income received from a tenant at the realty and real property located in another state
  • Failure to report that a “fraud action” was brought by the objectant and her sisters against the petitioner
  • Forgery of the decedent’s signature on a check for $1,638
  • Disposal of the decedent’s household possessions and family heirlooms without consulting the distributees
  • Directing decedent’s remains to be cremated, even though it was the family’s desire for a burial
  • Petitioner’s son improperly accumulated nearly $80,000 in unpaid parking tickets and toll fees while operating the decedent’s motor vehicle, which is not listed as an estate asset

The petitioner responded with reasonable explanations to each of the objectant’s accusations.

Disqualification of administrator
In In re Scott, the decedent nominated the petitioner to serve as the administrator of her estate.  Courts do not like to circumvent the wishes of a testator and give their selection of administrator great deference.  However, a court also will not appoint an administrator who is not fit to serve.

When there is an allegation that an administrator is not fit to serve, the party making the allegation has the burden of proof.  Letters will be denied only where the objectant produces clear and strong evidence of serious misconduct or wrongdoing that endangers the health of the estate. The court will not deny letters or remove an administrator based on speculation.

In In re Scott, the objections were not based on clear and strong evidence of serious misconduct or wrongdoing that endangers the health of the estate. They were conclusory. As a result, the court found that the objectant did not meet her burden of proving that the petitioner was unfit to receive preliminary letters testamentary under any of the grounds specified in SCPA 707 or SCPA 711.


Contact Information