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Court Decides Case Regarding Letters Testamentary


This is a probate proceeding in which objections have been filed to the granting of letters testamentary to an attorney who is the executor named in the decedent’s will.

A New York Probate Lawyer said that Decedent died in July 1970, leaving a will which gave her entire estate to her husband and named the proponent as executor. The husband having predeceased the testatrix, the propounded paper will have no effect as a testamentary instrument to dispose of decedent’s estate and accordingly, her property which consists primarily of a two-family house will pass as in intestacy. The distributees of the testatrix are two brothers and a sister who are residents of Italy and a nephew and niece residing in New York who are children of a predeceased sister.
It is alleged that a day or two after the death of the decedent, the executor named in decedent’s will received from decedent’s step-son who had been residing with decedent, papers and documents relative to the affairs of the decedent including the deed to premises, and a paper writing purported to be decedent’s last will and testament. After a passage of time in which efforts were made by the nephew and niece to ascertain without success whether there was in fact a will, the nephew and niece filed a petition in this court for letters of administration. Thereafter, letters of administration were granted to the nephew and niece.

A New York Estate Lawyer said that the discovery proceeding was commenced against the decedent’s step-son and the attorney who is now the proponent herein to discover the decedent’s personal property allegedly withheld by the respondents. In July 1971, during the course of the hearing in the discovery proceeding, it was disclosed that the attorney was in possession of decedent’s will wherein he was the named executor and was then directed to file the will and move for its probate. This he has now done and the nephew and niece joined by the Consul General of Italy at New York have filed objections to the issuance of letters testamentary to the proponent upon the grounds that: (a) he is incompetent to execute the duties of such office by reason of improvidence; (b) he does not possess the degree of responsibility required of a fiduciary.

Westchester County Probate Lawyers said at the hearing before the court, a witness who had been a tenant in decedent’s real property at for a number of years testified that he house had been in excellent condition when she moved out about three weeks after decedent’s death. Another witness who is employed as a maintenance man by the Board of Education of the City of New York and who was related to the deceased by marriage testified in the same vein as to the condition of the house shortly before decedent’s death.

Suffolk County Probate Lawyers said the witness further testified that when he examined the premises in the spring of 1971, which was about seven or eight months after decedent’s death, he observed that the ceilings in almost all of the rooms on the ground floor of the house had fallen down, that there were signs of water damage at the ceilings where the tile and plaster had fallen, that the walls were water-stained and damaged, that the plumbing was not working, that the floors had been so severely damaged by water that they would have to be replaced and that the tiles on the floors had come loose. He further testified that there was no heat in the building and the water damage was caused by the bursting of frozen pipes and that there appeared to be considerable damage to the electrical wires in the walls on the ground floor and to the entire electrical system.

The court is mindful of the rule that a nominated executor cannot lightly be denied letters testamentary. The prerogative of the testator to appoint a person in whom he has confidence to administer his estate cannot be arbitrarily usurped by the court.

As pointed out, one of the primary obligations of a fiduciary is that he preserves the estate assets. This may require a variety of acts of varying degrees of complexity, obviousness and immediacy and failure on the part of a fiduciary to take appropriate action when he should have acted to preserve the estate assets may constitute waste justifying his removal. Since the court has the duty to revoke the letters of a executor who has wasted the assets of the estate or has otherwise improvidently managed or injured the property committed to his charge, such conduct should in the first instance be sufficient justification for the court to deny to a nominated executor the right to assume a fiduciary role.

The court has carefully considered the situation which is here presented and concludes that the nominated executor has exhibited such indifference, inertia and utter disregard for his obligations to this estate that issuance of letters testamentary to him must be refused. Accordingly, the will shall be admitted to probate, letters of administration heretofore issued to the objectants shall be revoked, the issuance of letters testamentary to the nominated executor will be denied and letters c.t.a. herein will issue to the objectants upon due application and qualification therefor.

It is a sad reality that when a person died, the heirs are saddened by the fact of his death and oftentimes the properties left are the very issues of the heirs. Here in Stephen Bilkis and Associates, we have Bronx County Estate attorneys who will help these disputing heirs to settle their differences. In case a decedent died with a will, our Bronx County Probate lawyers will help you bring the last will and testament for its probate.

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