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Surrogate’s Court Procedure Act § 1414: When Letters Testamentary May be Issued

When someone passes away testate, the decedent’s will, must be probated and an executor appointed to administer the decedent’s estate. Typically the person who is appointed executor is the person who the testator named in his or her will to serve as executor. However, if that person cannot serve or is not eligible to serve, another person may request to be appointed. When the Surrogate’s Court appoints someone to serve as executor, the court will issue that person letters testamentary. The conditions under which the Surrogate’s Court may issue letters testamentary are outlined in Surrogate’s Court Procedure Act § 1414, When letters testamentary may be issued. To learn more about the requirements for 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. Preliminary letters testamentary: Surrogate’s Court Procedure Act, § 1412
  3. Revocation of letters upon proof of will: Surrogate’s Court Procedure Act, § 1413
  4. Supplementary letters, executors not named in letters not to act: Surrogate’s Court Procedure Act, § 1415
Letters testamentary

Letters testamentary is the official name for a legal document that is issued by the New York Surrogates’ Court, that gives an executor the power to act in a fiduciary manner on behalf of the decedent’s estate. While a testator can name a person in his or her will to serve as executor, doing so is not enough to legally appoint that person as executor. It merely nominates him or her. The Surrogate’s Court must appoint the executor and issue letters for the executor to have legal authority. The letters testamentary along with a death certificate are typically what are needed to complete banking, real estate transactions, distributions, and other activities on behalf of the estate.

If a decedent passes away without leaving a will, the document authorizing someone to administer his or her estate is referred to as Letters of Administration.

When letters testamentary may be issued

According to New York law, letters testamentary may be issued under the following circumstances:

  • Will admitted to probate. Once the Surrogate’s Court has admitted a will to probate, the court will also issue letters testamentary to the eligible petitioner. To learn more about the steps to admitting a will to probate, contact an experienced New York probate attorney.
  • Will established. The Surrogate’s Court may also issue letters testamentary if a judgment has been rendered in an action establishing a will. The judge must issue letters as directed by the judgment.
  • Contingency. If letters are required to be issued if a contingency occurs, and the contingency occurs, then the Surrogate’s Court judge must issue letters.
Who can serve as executor

Letters testamentary will only be issued to someone who is qualified to serve. If a person is ineligible, the Surrogate’s Court will not issue letters testamentary even if a testator nominated the person to serve as executor. Those who are ineligible include:

  • Infant. An infant is anyone who is under the age of 18 years old.
  • Incompetent. If a person has been adjudicated incapable of caring for his or her own affairs, that person is not qualified to care for the affairs of another person or to administer an estate.
  • Felon. A person who has been convicted for a felon is ineligible to serve as an executor.
  • Non U.S. resident. A non U.S. resident who does not live in the United State cannot serve as an executor.
  • Otherwise unfit. The Surrogate’s Court Procedure Act lists other reasons that a person could be deemed unfit serve. Such reasons are generally based on character flaws and include being dishonest or reckless. In addition, a person who has a substance abuse problem would not be eligible to serve as executor.

These factors are not exhaustive. There are other factors that may cause a person to be unfit to serve. For example, if the person is unable to speak or write English, the court may conclude that he or she is ineligible to serve. If you have reason to believe that a person who has petitioned to be named executor of a loved one’s estate, then discuss with an experienced probate attorney in New York the procedure for filing objections to the appointment.

Surrogate’s Court Procedure Act § 1414. When letters testamentary may be issued
  1. After a will has been admitted to probate any person entitled to letters thereunder who is eligible and who appears and qualifies is entitled to letters testamentary.
  2. Where a judgment has been rendered in an action establishing a will the surrogate must record the will and issue letters as directed by the judgment.
  3. A person entitled to letters upon a contingency may appear and show that the contingency has happened by which he is entitled to such letters.
  4. A person named as an executor by a person other than the testator under a valid power contained in a will must appear and file an acknowledged selection of himself as an executor.
Contact the Law Offices of Stephen Bilkis & Associates

The probate attorneys serving clients in New York at the Law Offices of Stephen Bilkis & Associates have successfully represented executors, fiduciaries, beneficiaries, and heirs in complex estate matters before the New York Surrogate’s Court, including issues related probate, will challenges, and probate litigation. If you have questions or concerns related to the requirements of New York SPCA section 1414, When letters testamentary may be issued, or any other probate, will, estate, or trust matter, contact one of our attorneys 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: Queens, Nassau County, Bronx, Brooklyn, Manhattan, Long Island, Staten Island, Suffolk County, and Westchester County.

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