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Court Determines Who Letters Testimentary Should Be Issued To


On 14 December 2005, the decedent died leaving a will dated 13 September 2005 (the “2005 Will”) and a prior will dated 24 January 2003 (the “2003 Will”). She was survived by three (3) daughters. Under the 2003 will, two (2) of the decedent’s daughters are named as executor and successor executor. Under the 2005 will, one of the daughters named in the 2003 will is again named as executor.

To whom shall the letters testamentary be issued?

The rules state that the issuance of preliminary letters testamentary was to provide a form of letters to the named executor which would allow for the immediate administration of the estate (estate administration or estate litigation) when there may be a delay in probate (will contest). 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 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, 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.

The 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. A New York Probate Lawyer said 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. Generally, however, 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. An executor named in a later will is given a priority over an executor named in an earlier will. Where competing wills are offered, the court may 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 can protect the parties better.

Consequently, one of the daughter’s application for preliminary letters testamentary predicated on her nomination as substitute executor under the 2003 will was denied, and the other daughter’s application for preliminary letters testamentary as executor under the 2005 will was granted. The court has ruled that the 2005 will dispenses with the filing of a bond. Long Island Probate Lawyers said that though the court may still require a bond if “extraordinary circumstances” exist, such is not the case. There are no extraordinary circumstances to warrant the filing of a bond. Thus, preliminary letters testamentary was issued to the daughter named as executor in both wills to serve without bond upon her duly qualifying under the law.

Also, 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 one of the daughters (executor under the 2003 will). Manhattan Probate Lawyers said for that reason, limited letters of administration was issued to the other daughter upon her duly qualifying according to law, without bond.

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