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New York Surrogate's Court Procedure - Article 14 - § 1412 Preliminary Letters Testamentary

Legal Research Home > New York Laws > New York Surrogate's Court Procedure (SCP) > New York Surrogate's Court Procedure - Article 14 - § 1412 Preliminary Letters Testamentary

 
  § 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.
    2. (a)  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.
    (b)   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.
    3. (a) 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.
    (b)  A  preliminary executor shall give notice to all parties who have
  appeared of his or her appointment within ten days of such appointment.
    4.  (a)  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.
    (b)  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.
    5.  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.
    6.  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
    (a)    if  it  shall appear that the preliminary executor is guilty of
  unreasonable delay in the probate proceeding or
    (b)  for any cause that would justify the revocation of letters  under
  719 or
    (c)    for  any  other  reason  deemed  by the court to be in the best
  interests of the estate.
    7.  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.

Last modified: February 18, 2012