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Petitioner Requests Preliminary Letters


A man died on October 28, 2006 leaving a will dated April 27, 2006. The man’s last will nominates an attorney and a friend as executors. He was survived by his two adult children. The man’s friend renounced his appointment.

The will provides that the man’s entire residuary estate shall be distributed to his woman companion. The will specifically disinherits the man’s children. The attorney assigned as executor has petitioned for preliminary letters testamentary.

By order to show cause, the man’s daughter seeks an order denying the issuance of preliminary letters testamentary to the attorney; disqualifying the attorney from serving as executor of the estate; removing the assigned attorney executor as the attorney for the estate; compelling the attorney to comply with discovery demands previously served; compelling the attorney to produce and file with the court an alleged 2004 will of the man; appointing a guardian ad litem to represent the interests of the deceased man’s two infant grandchildren named as beneficiaries in the prior will; appointing the daughter as executor since she was alleged named as executor in the 2004 will; staying the issuance of preliminary letters to the attorney in pending a hearing on the order to show cause; and adjourning the law examinations. The decision addresses only the issue of whether preliminary letters should issue to the attorney.

New York Probate Lawyers said the law 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 of estate administration when there may be a delay in probate. The purpose of the law 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 will contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent will contests within a contest.

The court said that 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.

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. 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, Bronx Probate Lawyers said that mere conclusive 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.

The daughter has requested that preliminary letters issue to her as executor under the alleged 2004 will. The petitioner’s counsel states that the petitioner did not draw a will for the deceased man in 2004 and has no knowledge of a 2004 will. Even if there is an earlier will naming the daughter as executor, the deceased man, as an executor named in the purported later will, has a prior right to testamentary letters. Under the law, preliminary letters must issue to the attorney in the absence of good cause shown or serious misconduct which renders him unqualified.

The 2006 will dispenses with the filing of a bond. Brooklyn Probate Lawyers said that even if the will dispenses with the filing of a bond, the court may require a bond if extraordinary circumstances exist. Preliminary letters testamentary shall issue to the attorney upon his duly qualifying under the law, to serve without bond.

Assigning someone outside of the family to serve as someone else’s last will executor mean that person is trusted. If you were named as someone else’s executor for last will and testament and you find it difficult to unite the family members, feel free to seek the assistance of New York Probate Lawyers from Stephen Bilkis and Associates.

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