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Court Discusses the Surrogate’s Court Protection Act


A New York Probate Lawyer said the decedent woman died leaving a will dated April 5, 1999 (the 1999 will) and two prior wills dated June 5, 1998 (the 1998 will) and November 26, 1997, all of which were filed with the court. All three wills nominate the decedent’s sister and the decedent’s nephew as co-executors.

The 1999 will provide that the decedent woman’s residuary estate shall be distributed 50% to her sister and 50% to her nephew and his wife. A New York Will Lawyer said that th 1998 will, however, provides that 50% of the residuary estate will be distributed to her sister, 25% to her sister’s son and his wife, and 25% to her nephew and his wife. All of the wills contain an in terrorem clause and dispense with the filing of a bond. An in terrorem clause is a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will.

Manhattan Probate Lawyers said the petition filed with the court, the decedent’s nephew offered the 1999 will for probate. The decedent’s sister, although named in the 1999 will as a co-executor has failed to join in the petition. Thereafter, by petition filed with the court, the sister applied for preliminary letters testamentary based upon her nomination as co-executor under the 1998 will. In her prayer for relief, the sister asked that preliminary letters issue solely to her alleging that the nephew has made no attempt to have a preliminary appointment made in the matter. By petition, the decedent’s nephew petitioned for preliminary letters testamentary based upon his nomination as co-executor under the 1999 will. The nephew requests that preliminary letters issue solely to him since the decedent’s sister may object to admission of the 1999 will to probate because her son would receive a portion of the residuary estate under the 1998 will.

A New York City Probate Attorney said a person named as executor has a moral obligation to offer a putative will for probate. That moral obligation, however, does not rise to a legal obligation. Further, a nominated fiduciary need not offer for probate a will which he believes to be invalid. In the instant case, Audrey Sandler has chosen not to join in the petition for probate of the 1999 will or to seek preliminary letters on the basis that she is named as a co-executor under the 1999 will, presumably because she will be challenging the validity of the 1999 will.

Surrogate’s Court Protection Act (SCPA) 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 estate administration when there may be a delay in probate. The purpose of SCPA 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.

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, SCPA 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. If any person has an equal right to letters such as 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.

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 under SCPA. 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.

SCPA 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 will better protect the parties.

Here, the decedent’s sister has requested that preliminary letters issue to her as a co-executor under the 1998 will, not as a co-executor under the 1999 will. Thus, the nephew as a co-executor named in the later will, has a prior right to letters pursuant to the provisions of SCPA. Under SCPA, preliminary letters must be issued to the nephew in the absence of good cause shown or serious misconduct which renders him unqualified.

The decedent’s sister argues that preliminary letters should issue solely to her because the nephew neglected to apply for preliminary letters in a timely fashion. Here, the decedent died and the 1999 will was offered for probate by petition. The nephew avers that the 1999 will would have been offered for probate sooner but for the uncertainty of whether the sister would be joining in the petition. Moreover, because the prior wills were filed with the court, service of process must issue to all persons adversely affected by the 1999 will. Thus, the nephew has the task of locating a number of persons who were beneficiaries under the prior wills. The nephew’s counsel states, by affidavit, that substantial effort has been made to locate such persons. Here the record does not indicate that the delay in this proceeding was the result of any neglect on the nephew’s part.

The sister’s allegation that the nephew is not qualified to act as a fiduciary fails to go beyond conclusory allegations which are clearly insufficient to provide a basis for the denial of preliminary letters testamentary. She has failed to demonstrate good cause or serious wrongdoing which would permit the court to nullify the testator’s choice of fiduciary. Accordingly, the sister’s application for preliminary letters testamentary predicated on her nomination as a co-executor under the 1998 will is denied, and the nephew’s application for preliminary letters testamentary as a co-executor under the 1999 is granted. However, should the sister join in the petition for probate of the 1999 will, she would have an equal right to preliminary letters and may, at such time, make an application to the court asking that the preliminary letters be extended to her.

The 1999 will dispenses with the filing of a bond. Pursuant to SCPA, 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.

When a person makes a will, the intention is to benefit the names that appear on the document. If you want to make sure that you get what is due of you as stated in the will, approach a Nassau County Probate Lawyer or a Nassau County Will Contest Attorney. Stephen Bilkis and Associates can also provide you with a Nassau County Estate Lawyer if you need one.

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