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Surrogate’s Court Procedure Act § 1412: Preliminary letters testamentary

Before a decedent’s affairs can be settled by the executor named in his (or her) will, the will must be submitted to the New York Surrogate’s Court and a petition must be submitted requesting the court to issue the executor letters testamentary. Letters testamentary is the document that the Surrogate’s Court will issue that gives the executor the legal authority to carry out the administration of a decedent’s estate according to the terms of the will. Generally there are procedural rules that must be followed before letters testamentary are issued to a petitioner, under certain circumstances the court will issue preliminary letters testamentary, as described in Surrogate’s Court Procedure Act § 1412, preliminary letters testamentary. If you have questions about the process of being appointed executor, contact an experienced New York probate lawyer at the Law Offices of Stephen Bilkis & Associates.

Related statutory provisions
  1. Citation upon filing of objections: Surrogate’s Court Procedure Act, § 1411
  2. Revocation of letters upon proof of will: Surrogate’s Court Procedure Act, § 1413
  3. When letters testamentary may be issued: Surrogate’s Court Procedure Act, § 1414
  4. Supplementary letters, executors not named in letters not to act: Surrogate’s Court Procedure Act, § 1415
Preliminary letters testamentary

Under the New York Surrogate’s Court Procedure Act, the rules related to the issuance of preliminary letters testamentary includes:

  • Written request. Once a petition for probate has been filed, the executor nominated in the will may request in writing that the Surrogate’s Court issue preliminary letters. This option is not available if the petition for probate is filed with respect to a will that was lost or destroyed as described under Surrogate’s Court Procedure Act § 1407, Proof of lost or destroyed will. The judge was discretion as to whether or not to accept the request. As an experienced probate attorney in New York will explain, interested parties have the right to file objections to the issuance of preliminary letters.
  • Revocation of preliminary letters. If preliminary letters testamentary have been issued, and then another will is filed that is latter in date, the executor named in the later will may request that the Surrogate’s Court revoke the prior letters. The court has the discretion to revoke the letters issued and grant preliminary letters testamentary to the executor named in the later will. The judge can also choose to grant preliminary letters testamentary jointly to the executors named in both the first will filed and the later will filed. In addition, the judge can also choose to take any other such action as he or she deems appropriate for the best interests of the estate.
  • Effect of issuance of preliminary letters. A person who has been issued preliminary letters testamentary by the Surrogate’s Court shall have all the powers and authority of an administrator, including taking possession of, managing, and selling property. However, the person will not have the authority to distribute assets.
  • Probate denied. If a decree is issued deny probate of the will, then that decree shall also revoke the preliminary letters issued related to that will.

Whether you are an executor, beneficiary, heir, or other interested party and you have concerns related to the issuance of preliminary letters testamentary, contact an experienced New York probate lawyer.

Example

In In re Boynton, 9 N.Y.S.3d 592 (Table) (N.Y. Surr. Ct., 2014), Bettina Boynton died, leaving her entire estate, valued at about $1.4 million, to friends and charities. Boynton did not leave anything in her will to family. The will was prepared by attorney Logan Fulrath, Jr. who was also the nominated executor. Mr. Fulrath requested the issuance of preliminary letters. However, beneficiaries Victoria Klement and Linda Pardy objected.

Klement and Pardy based their objections on Fulrath’s extreme delay in offering the will for probate. Despite repeated requests from Klement, who admittedly was in possession of Boynton’s will, Fulrath did not produce the will until compelled to by the court, nearly 2 years after Boynton’s death. During the same time period, Fulrath failed to secure and maintain Boynton’s property. As a result Boynton’s property was vandalized. In addition, real estate and estate taxes went unpaid and unnecessarily accrued interest and penalties.

Immediately after filing the will after being compelled by the court to do so, Fulrath filed a petition for issuance of preliminary letters testamentary. As a result of Fulrath’s inattention to matters related to Boynton’s estate, the objectants are concerned about additional delays if letters were issued to Fulrath. The Surrogate’s Court shared the objectants’ concerns. It concluded that even though the executor named in the will has priority to the issuances of preliminary letters testamentary, if there is good reason to decline the appointment of the nominated executor, the court may do so. Because Fulrath showed such a high level of inattention to preserving the assets of the Boynton’s estate, the court was convinced that the asset might be in peril if Fulrath were to receive preliminary letters testamentary.

Surrogate’s Court Procedure Act § 1412. Preliminary letters testamentary
  1. Whenever a petition for probate of a will (other than a lost or destroyed will) has been filed and process has issued thereon, an executor named in the will may file with the court a written request for the issuance to him of preliminary letters testamentary. In its discretion the court may accept a written request for such letters prior to the issuance of process upon such proof as the court shall deem necessary. Where the request is made by one of several nominated executors, notice shall be given to all persons who under the terms of the will have a right to letters testamentary equal to that of the petitioner. Where there is another will of the same testator on file in the court that is later in date than the propounded instrument, notice shall be given to all persons who under the terms of the later will would have the right to letters testamentary immediately upon probate of such later will.
    1. Notice hereunder shall be given at the time and in the manner directed by the court and may be given either before or after issuance of preliminary letters. Any person having a right to letters testamentary equal to that of an applicant for preliminary letters testamentary may join in the application for such letters and may request that they issue to him or after the issue of such letters may request that the letters heretofore issued be extended to him. A person named in the will to act as executor upon the occurrence of any contingency may in like manner request issuance of such letters, provided that the contingency has occurred which would entitle him to be appointed executor. A person named as executor in a will later in date than that in which the first applicant is appointed may file a written cross-request for preliminary letters testamentary after he has filed a petition for probate of such later will and process has been issued thereon. Unless, for good cause shown, the court shall otherwise direct, the person named as executor in the latest such will shall have a prior right to preliminary letters testamentary.
    2. When preliminary letters testamentary have been issued and thereafter a will later in date has been filed with a petition for its probate, and process has been issued thereon, an executor named in the later will may request the revocation of the prior letters and the issuance of preliminary letters to him, and upon such notice as the court may direct, the court shall have discretion to revoke the letters theretofore issued and grant preliminary letters testamentary to the executor named in the later will, to grant preliminary letters testamentary jointly to the executors named in both wills, to confirm the grant of letters theretofore issued, or to take such other action as the court deems to be for the best interests of the estate and of the persons interested therein.
    1. Upon due qualification as provided in subdivision 5 and upon the issuance of process, and whether before or after the return day of said process, preliminary letters testamentary must thereupon be issued to the person or persons who appear to the court to be entitled thereto, and where the court has accepted a request for such letters prior to the issuance of process, preliminary letters testamentary may be issued in the discretion of the court upon due qualification as provided in subdivision 5. The letters shall confer upon the person named therein, subject to any limitations contained in the instrument offered for probate, all the powers and authority and shall subject him to all the duties and liabilities of an administrator except that they do not confer any power to pay or to satisfy a legacy or distributive share. Unless the court or the instrument offered for probate directs otherwise, a preliminary executor is also authorized to take possession of, manage and sell any real property devised by and any personal property specifically bequeathed by the instrument offered for probate and to allocate the expenses of managing such property in accordance with what is reasonable and equitable in view of the interests of those persons interested in such property and in the estate, except that any such property specifically devised or bequeathed may only be sold or otherwise disposed of with the written consent of the specific devisee or legatee or by court order. This authority shall not prevent the preliminary executor from permitting the devisee or legatee of such property to have possession of such property.
    2. A preliminary executor shall give notice to all parties who have appeared of his or her appointment within ten days of such appointment.
    1. The court may in the order directing the issuance of preliminary letters testamentary or in one or more subsequent orders limit preliminary letters testamentary to the receipt of assets specified in such order or orders and may prohibit the collection of any other assets of the decedent, or may limit or authorize the person named in such letters in any manner that the court deems advisable for the effective protection of the rights of all persons who may have an interest in the estate of the decedent.
    2. In such order or orders, the court may make such directions as it deems proper and necessary with respect to the custody and preservation of all papers and records of the decedent. Discovery and production of such papers and records shall be governed by article thirty-one of the civil practice law and rules.
  2. Before preliminary letters testamentary are issued to a named executor he shall qualify as provided in 708. If the will offered for probate shall require the filing of a bond by the executor the person requesting preliminary letters testamentary must file his bond in accordance with the requirements of the will. In addition the court shall have full and complete discretion to require him to file such additional bond as it deems advisable under the circumstances of the particular case. Where the will is silent in respect of the filing of a bond or where it explicitly dispenses with the filing of a bond the court shall nevertheless have full and complete discretion at any time and from time to time to require the person seeking such letters to file a bond in such amount as the court deems advisable under the circumstances of the particular case or it may grant such letters without bond. Where the will explicitly dispenses with the filing of a bond, the court shall grant such letters without bond, unless it determines there are extraordinary circumstances in the particular case to warrant filing of a bond, in which case the court shall have discretion to require the person seeking such letters to file a bond in such amount as the court deems advisable.
  3. A decree denying probate to a propounded instrument shall revoke any preliminary letters testamentary issued upon such instrument unless the court shall direct that such letters continue until the termination of any appeal and in such case the court may make such limitations, restrictions or conditions on such letters as justice may require. The court may revoke preliminary letters testamentary at any time
    1. if it shall appear that the preliminary executor is guilty of unreasonable delay in the probate proceeding or
    2. for any cause that would justify the revocation of letters under 719 or
    3. for any other reason deemed by the court to be in the best interests of the estate.
  4. A preliminary executor shall not be entitled to the commissions provided for a fiduciary in this act unless the will be admitted to probate and letters testamentary are issued to him, in which event he shall be entitled to commissions as provided in this act for a case where successive letters are issued to the same person on the estate of the same decedent. If the will be denied probate or his letters are revoked for any reason during the pendency of the probate proceeding he shall be entitled for such service to receive only such compensation, if any, as the court shall determine to be reasonable and just for the services rendered by him to the estate, not to exceed the commissions to which an executor would be entitled. For purpose of the fixation of such commissions or compensation any real property or specifically devised personal property of which a preliminary executor took possession and then distributed or otherwise disposed of shall be treated as property received, distributed or delivered.
Contact the Law Offices of Stephen Bilkis & Associates

Before the assets of a testate decedent can be distributed to loved ones, the decedent’s will must be admitted to probate and letters of administration must be issued to the executor. To ensure that your interests are protected during the process, it is important that you are represented by an experienced attorney. For over twenty years the attorneys at the Law Offices of Stephen Bilkis & Associates have successfully represented beneficiaries, heirs, executors, and fiduciaries, in matters related to probate, probate administration, and probate litigation. If you have questions or concerns related to the requirements of New York SPCA section 1412, Preliminary letters testamentary, or any other will, estate, or trust matter, contact one of our experienced probate attorneys serving New York at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Brooklyn, Nassau County, Bronx, Manhattan, Queens, Long Island, Staten Island, Suffolk County, and Westchester County.

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