§ 1412 — Preliminary letters testamentary 1

New York § 1412

• Jurisdiction: New York
• Law SCP: Surrogate's Court Procedure
• Art. 14: Probate Proceedings; Construction of Wills; Right of Election

Text

§ 1412. Preliminary letters testamentary\n 1. Whenever a petition for probate of a will (other than a lost or\ndestroyed will) has been filed and process has issued thereon, an\nexecutor named in the will may file with the court a written request for\nthe issuance to him of preliminary letters testamentary. In its\ndiscretion the court may accept a written request for such letters prior\nto the issuance of process upon such proof as the court shall deem\nnecessary. Where the request is made by one of several nominated\nexecutors, notice shall be given to all persons who under the terms of\nthe will have a right to letters testamentary equal to that of the\npetitioner. Where there is another will of the same testator on file in\nthe court that is later in date than the propounded instrument, notice\nshall be given to all persons who under the terms of the later will\nwould have the right to letters testamentary immediately upon probate of\nsuch later will.\n 2. (a) Notice hereunder shall be given at the time and in the manner\ndirected by the court and may be given either before or after issuance\nof preliminary letters. Any person having a right to letters\ntestamentary equal to that of an applicant for preliminary letters\ntestamentary may join in the application for such letters and may\nrequest that they issue to him or after the issue of such letters may\nrequest that the letters heretofore issued be extended to him. A person\nnamed in the will to act as executor upon the occurrence of any\ncontingency may in like manner request issuance of such letters,\nprovided that the contingency has occurred which would entitle him to be\nappointed executor. A person named as executor in a will later in date\nthan that in which the first applicant is appointed may file a written\ncross-request for preliminary letters testamentary after he has filed a\npetition for probate of such later will and process has been issued\nthereon. Unless, for good cause shown, the court shall otherwise\ndirect, the person named as executor in the latest such will shall have\na prior right to preliminary letters testamentary.\n (b) When preliminary letters testamentary have been issued and\nthereafter a will later in date has been filed with a petition for its\nprobate, and process has been issued thereon, an executor named in the\nlater will may request the revocation of the prior letters and the\nissuance of preliminary letters to him, and upon such notice as the\ncourt may direct, the court shall have discretion to revoke the letters\ntheretofore issued and grant preliminary letters testamentary to the\nexecutor named in the later will, to grant preliminary letters\ntestamentary jointly to the executors named in both wills, to confirm\nthe grant of letters theretofore issued, or to take such other action as\nthe court deems to be for the best interests of the estate and of the\npersons interested therein.\n 3. (a) Upon due qualification as provided in subdivision 5 and upon\nthe issuance of process, and whether before or after the return day of\nsaid process, preliminary letters testamentary must thereupon be issued\nto the person or persons who appear to the court to be entitled thereto,\nand where the court has accepted a request for such letters prior to the\nissuance of process, preliminary letters testamentary may be issued in\nthe discretion of the court upon due qualification as provided in\nsubdivision 5. The letters shall confer upon the person named therein,\nsubject to any limitations contained in the instrument offered for\nprobate, all the powers and authority and shall subject him to all the\nduties and liabilities of an administrator except that they do not\nconfer any power to pay or to satisfy a legacy or distributive share.\nUnless the court or the instrument offered for probate directs\notherwise, a preliminary executor is also authorized to take possession\nof, manage and sell any real property devised by and any personal\nproperty specifically bequeathed by the instrument offered for probate\nand to allocate the expenses of managing such property in accordance\nwith what is reasonable and equitable in view of the interests of those\npersons interested in such property and in the estate, except that any\nsuch property specifically devised or bequeathed may only be sold or\notherwise disposed of with the written consent of the specific devisee\nor legatee or by court order. This authority shall not prevent the\npreliminary executor from permitting the devisee or legatee of such\nproperty to have possession of such property.\n (b) A preliminary executor shall give notice to all parties who have\nappeared of his or her appointment within ten days of such appointment.\n 4. (a) The court may in the order directing the issuance of\npreliminary letters testamentary or in one or more subsequent orders\nlimit preliminary letters testamentary to the receipt of assets\nspecified in such order or orders and may prohibit the collection of any\nother assets of the decedent, or may limit or authorize the person named\nin such letters in any manner that the court deems advisable for the\neffective protection of the rights of all persons who may have an\ninterest in the estate of the decedent.\n (b) In such order or orders, the court may make such directions as it\ndeems proper and necessary with respect to the custody and preservation\nof all papers and records of the decedent. Discovery and production of\nsuch papers and records shall be governed by article thirty-one of the\ncivil practice law and rules.\n 5. Before preliminary letters testamentary are issued to a named\nexecutor he shall qualify as provided in 708. If the will offered for\nprobate shall require the filing of a bond by the executor the person\nrequesting preliminary letters testamentary must file his bond in\naccordance with the requirements of the will. In addition the court\nshall have full and complete discretion to require him to file such\nadditional bond as it deems advisable under the circumstances of the\nparticular case. Where the will is silent in respect of the filing of a\nbond or where it explicitly dispenses with the filing of a bond the\ncourt shall nevertheless have full and complete discretion at any time\nand from time to time to require the person seeking such letters to file\na bond in such amount as the court deems advisable under the\ncircumstances of the particular case or it may grant such letters\nwithout bond. Where the will explicitly dispenses with the filing of a\nbond, the court shall grant such letters without bond, unless it\ndetermines there are extraordinary circumstances in the particular case\nto warrant filing of a bond, in which case the court shall have\ndiscretion to require the person seeking such letters to file a bond in\nsuch amount as the court deems advisable.\n 6. A decree denying probate to a propounded instrument shall revoke\nany preliminary letters testamentary issued upon such instrument unless\nthe court shall direct that such letters continue until the termination\nof any appeal and in such case the court may make such limitations,\nrestrictions or conditions on such letters as justice may require. The\ncourt may revoke preliminary letters testamentary at any time\n (a) if it shall appear that the preliminary executor is guilty of\nunreasonable delay in the probate proceeding or\n (b) for any cause that would justify the revocation of letters under\n719 or\n (c) for any other reason deemed by the court to be in the best\ninterests of the estate.\n 7. A preliminary executor shall not be entitled to the commissions\nprovided for a fiduciary in this act unless the will be admitted to\nprobate and letters testamentary are issued to him, in which event he\nshall be entitled to commissions as provided in this act for a case\nwhere successive letters are issued to the same person on the estate of\nthe same decedent. If the will be denied probate or his letters are\nrevoked for any reason during the pendency of the probate proceeding he\nshall be entitled for such service to receive only such compensation, if\nany, as the court shall determine to be reasonable and just for the\nservices rendered by him to the estate, not to exceed the commissions to\nwhich an executor would be entitled. For purpose of the fixation of\nsuch commissions or compensation any real property or specifically\ndevised personal property of which a preliminary executor took\npossession and then distributed or otherwise disposed of shall be\ntreated as property received, distributed or delivered.\n