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Court Rules on an Application for Letters Testamentary


A New York Probate Lawyer said this is an application for preliminary letters testamentary. The decedent died in December 2005 leaving a will (the “2005 Will”) and a prior will in January 2003 (the “2003 Will”). The 2003 will nominates the decedent’s daughter as executor and another daughter as successor executor. The 2005 will also nominates the first daughter as executor. The decedent was also survived by her other daughter.

A New York Will Lawyer said that the 2003 will bequeaths all shares that the decedent had in any companies or corporations to the decedent’s grandchildren, equally and the decedent’s bank accounts to her daughters equally. The 2003 will further provide for bequests of tangible personal property. The 2003 will gives the decedent’s cooperative apartment in equal shares. The remainder of the estate is bequeathed in one-third (1/3) shares to each of the decedent’s daughters.
The 2005 will gives all of the decedent’s jewelry to a daughter, and the balance of the decedent’s tangible personal property located in her home to another daughter and her husband. The 2005 will further provide for a bequest of the decedent’s joint bank account to the daughter executor or if she does not survive, to another daughter. Under Article FOURTH of the 2005 will, the residuary estate is bequeathed to the daughter executor.

A Queens Probate Lawyers SCPA 1412, 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 administration of the estate when there may be a delay in probate. The purpose of SCPA 1412 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.

Long Island Probate Lawyers 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, SCPA 1412 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, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters under 1412 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 707. 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 1412 [2][a] 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 petitioner has requested that preliminary letters issue to her as a substitute executor under the 2003 will. Thus, the daughter, as an executor named in the 2005 will, has a prior right to letters pursuant to the provisions of SCPA 1412(2)(a). Under SCPA 1412, preliminary letters must issue to Karen in the absence of good cause shown or serious misconduct which renders her unqualified.

Petitioner argues that preliminary letters should issue to her because she intends to commence a discovery proceeding against the daughters and other persons who have knowledge of the decedent’s assets and the events and circumstances leading to $36,000 of credit card debt on the decedent’s charge card. Petitioner’s allegations fail to demonstrate “good cause” or serious wrongdoing which would permit the court to nullify the decedent’s choice of fiduciary. Accordingly, Petitioner’s application for preliminary letters testamentary predicated on her nomination as substitute executor under the 2003 will is denied, and daughter’s application for preliminary letters testamentary as executor under the 2005 will is granted. The court, based upon its “broad equitable powers, however, including the power to convert or fashion a remedy based upon the facts alleged, without strict adherence to the title of the proceeding given by the petitioner” deems that portion of the instant proceeding which seeks authority to commence a discovery proceeding, as an application for the issuance of limited letters of administration to the petitioner.

Accordingly, limited letters of administration shall issue to petitioner upon duly qualifying according to law, without bond.

The 2005 will dispenses with the filing of a bond. Pursuant to SCPA 1412(5), 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. Preliminary letters testamentary shall issue to the daughter upon her duly qualifying under the law to serve without bond.
An executor is a person appointed by a decedent to be responsible for the division of the estate. As such, he must be responsible and be guided by a lawyer. Here in Stephen Bilkis and Associates, our Nassau County Probate lawyers will guide the executor in order for him to perform his duties well. We also have our Nassau County Estate attorneys who will assist a testator in drafting his last will and testament.

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