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Administrator Moves to Dismiss Petition by Two Creditors


In this miscellaneous proceeding, the respondent, administrator de bonis non, moves to dismiss the petition by two alleged creditors for revocation of his letters pursuant to CPLR 3211 (a) (2) and (3).

A New York Probate Lawyer said that the decedent died in April 1939, intestate. The decedent was the writer of some classic songs. He was survived by his wife and his father. Pursuant to the law of intestacy applicable at the time of the decedent’s death, the survivors were the decedent’s only distributees. In May 1939, the wife was appointed administrator of the decedent’s estate. She died in November 1973, a resident of New York County. She left a last will and testament which nominated executors. The first executor died in January 1983 leaving a will. Letters testamentary in his estate issued to his co-executor.

A New York Will Lawyer said the respondent, who alleges that he is a grandnephew of the decedent, petitioned for letters of administration de bonis non with respect to the decedent’s estate by petition dated September 21, 2009. The petition filed by him in the administration proceeding recites that the decedent had eight brothers and sisters who were deceased and that five nephews/nieces and seventeen great-nephews/great-nieces “were surviving.” Nicholas’ petition for letters of administration de bonis non was supported by waivers and consents of twenty-one of the distributees identified and citation issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.

A Nassau County Probate Lawyer said that CPA 711 provides that “a co-fiduciary, creditor, person interested, any person on behalf of an infant or any surety on a bond of a fiduciary” may petition for the suspension, modification or revocation of letters. SCPA 719 provides that the court, without a petition or the issuance of process may suspend, modify or revoke letters issued to a fiduciary “where any of the facts provided in 711 are brought to the attention of the court” defines a creditor as “any person having a claim against a decedent or an estate.”

A Suffolk County Probate Lawyer said that in order to be entitled to make the instant application for revocation of letters, the petitioners must have had standing at the time the petition was filed. Here, the petitioners filed their petition in July 2012, and the Notice of Claim in October 2012. Since petitioners lacked standing at the time the petition was filed, it is not necessary for the court to pass upon the merits of the purported claim at this point or to address whether the claim was filed solely for the purpose of obtaining standing. The motion to dismiss the petition of is, therefore, granted on the basis of lack of standing.

Nevertheless, pursuant to SCPA 719, the court may on its own revoke, suspend or modify letters where any of the facts provided in SCPA 711 are brought to the attention of the court. SCPA 711 (4) provides for the revocation of a fiduciary’s letters where “the grant of his letters was obtained by a false suggestion of a material fact.” A fiduciary who misstates a material fact in his petition for letters is subject to removal regardless of whether the material misrepresentation was made in good or bad faith.

“Many cases broadly state that an inaccurate statement as to kinship in a petition for letters mandates the revocation of a fiduciary’s letters on the ground that the letters were obtained by a false statement of material fact, and this result is required notwithstanding that the inaccurate statement was made in good faith and without any intent to commit a fraud”.

“If a representation is shown to be false, the letters of the fiduciary may be revoked regardless of whether the misrepresentation was made innocently, or in good faith. The reason for this rule is that in revoking letters of a fiduciary the court is carrying out its responsibility to have the proper person administer the estate. The thrust of a proceeding to revoke is not to punish the fiduciary as an individual, but to protect the estate”.

In order to determine whether the executor is the proper person to administer this estate, a review of the statutory framework setting forth the priority for letters is necessary. A proceeding to obtain letters of administration de bonis non is the same as upon an application for original letters of administration governing the issuance of letters of administration de bonis non, provides that “[w]hen the office of administrator becomes vacant for any reason the court may grant letters of administration de bonis non to one or more eligible persons and the proceedings to procure such letters shall be the same as upon application for original letters of administration.”

SCPA 1001, which governs the application for original letters of administration, requires that letters be issued to persons who are distributees of an intestate decedent, and who are eligible and qualify, in a specified order. When all of the decedent’s distributees are deceased, letters of administration may issue to their fiduciaries, with preference given to the fiduciary of the distributee entitled to the largest share in the estate, or if all such deceased distributees are entitled to share equally in the estate, then to one or more of such distributees’ fiduciaries.

Alternatively, the court may issue letters of administration to any eligible “person who is not a distributee upon the acknowledged and filed consents of all eligible distributees, or if there are no eligible distributees, then on the consent of all distributees” Where letters are not granted as set forth above, they shall be granted in the following order to: (a) the public administrator, (b) the petitioner, in the court’s discretion, or (c) to any other person or persons.

Similarly, in a case, , the decedent died intestate, leaving his widow, two brothers and a sister as his only distributees. The widow was appointed administrator of his estate, but subsequently died. One of the decedent’s brothers applied for letters of administration de bonis non with the consent of his brother and sister. The executors of the deceased widow requested the issuance of letters of administration de bonis non to one of them. The court found that the estate of the deceased widow was entitled in distribution to a much greater part of the decedent’s net estate than his brothers and sister were. The widow had a prior right over decedent’s brothers and sister to letters of administration, and the court awarded letters of administration to the executors of her estate.

The only distributees of the decedent’s estate were Ruth Young and Samuel Young, both of whom are deceased. Pursuant to the statutory framework, the next persons in line to serve as fiduciary of the decedent’s estate are the fiduciaries of the estates. Here, the petition failed to identify the distributees or to cite the fiduciaries of their respective estates.

Moreover, the petition lists the decedent’s assets in need of administration as $9,000.00. The court is concerned that this figure is underestimated as it appears the decedent was a successful songwriter whose estate consisted of royalty interests which may be of a greater value than indicated given the possible copyright battle.

Based upon such concerns and due to the misstatement in executor’s petition, his letters are revoked. Letters of temporary administration shall issue to the Public Administrator, upon his duly qualifying. The Public Administrator shall attempt to identify the fiduciaries of the estates, which have a prior right to letters of administration de bonis non and to ascertain the value of the assets in need of administration.

Here in Stephen Bilkis and Associates, we are always ready and willing to help you with your legal problems. In case you want to oppose or object a will which was executed by a testator, we have Nassau County Will Contest attorneys who will represent you and raise your objections in Court. We also have Nassau County Estate Administration lawyer who will guide you on the proper administration of the estate of a deceased.

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