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Court Decides if Petition for Preliminary Letters Shoud Be Granted


On 28 October 2006, the decedent died leaving a will dated 27 April 2006. The will nominates two (2) executors. Thereafter, one of the executors renounced his appointment. The decedent was survived by his two adult children.

Under the will, the entire residuary estate is left to the decedent’s companion and the decedent’s children are disinherited. One of the named executors (petitioner) now petitions for preliminary letters testamentary.

The primordial issue (in the estate litigation) is whether or not the petition for preliminary letters should be granted.

The governing rule with regard to 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 (will contest). A New York Probate Lawyer said that its 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.

What’s more, 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. Queens Probate Lawyers said the preliminary letters may be denied, however, where the nominated executor’s eligibility is at issue. 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 affords an executor named in a later will a priority over an executor named in an earlier will. Where 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 is in the parties’ best interest.

In the instant case, the decedent’s daughter has requested that preliminary letters issue to her as executor under an alleged 2004 will. She claimed that the petitioner/executor:

1. has failed to produce the 2004 will;

2. has failed to comply with discovery demands;

3. is unfit to serve because of alleged misstatements by the process server upon which the order for substituted service was based and the fact that the letter enclosing the waiver and consent were sent to the wrong address;

4. has set forth a questionable valuation of assets in the application for preliminary letters;

5. acted in collusion with the residuary legatee; and

6. thus, failed to demonstrate “good cause” or serious wrongdoing which would permit the court to nullify the decedent’s choice of a fiduciary.

On the other hand, the petitioner/executor asserted that:

1. his counsel did not draw any will for the decedent in 2004 and has no knowledge of any 2004 will;

2. even if there is an earlier will naming another executor, the executor in the purported later will has a prior right to letters; and

3. preliminary letters must issue in the absence of good cause shown or serious misconduct which renders him unqualified.

The court has ruled that the 2006 will dispenses with the filing of a bond. A Staten Island Probate Lawyer said that pursuant to the governing rules, even if the will dispenses with the filing of a bond, the court may require a bond if “extraordinary circumstances” exist. There are no such extraordinary circumstances here. Thus, preliminary letters testamentary shall issue to the petitioner/executor upon his duly qualifying under the law, to serve without bond.

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