Preliminary Executor

Question:

I am the nominated Executor under my mother’s Will, which my sister is in the process of contesting. I understand that a Will contest may be a lengthy proceeding. Is there any way I can be appointed to act on behalf of the estate while that proceeding plays out?

Answer:
To answer this question, we must start from the beginning. Probate is a Surrogate’s Court proceeding whereby a decedent’s Last Will and Testament is given effect. Under New York State Law, a Will is admitted to probate after the nominated Executor files a Petition

for Probate with the decedent’s Will attached and gives proper notice to the individual’s that would have inherited from the decedent’s estate had the decedent died without a Will. The proceeding for the probate of a Will takes place in the Surrogate’s Court in the County where the decedent resided at the time of his or her death. The probate proceeding gives the interested parties (or “distributees”) the right and opportunity to object to the probate of the Will.

There are instances where the probate of the Will is delayed. This delay can be caused by a number of circumstances, including a contested Will proceeding which may result in Surrogate’s Court litigation lasting many months or even years. In these cases, it is generally advisable to petition the Surrogate’s Court for Preliminary Letters Testamentary.

A petition for Preliminary Letters Testamentary is commenced by the nominated Executor under the Will at the same time a Petition for Letters Testamentary is commenced. It is important to note that the Surrogate’s Court may deny Preliminary Letter to the petitioner. Also, Preliminary Letters Testamentary are no longer valid once full Letters Testamentary are issued.

Preliminary Letters Testamentary grant the nominated Executor named in the Will substantially all the rights and authority that a full Executor has, with the notable exception of the right of the Preliminary Executor to distribute the assets of the Estate to the beneficiaries. A Preliminary Executor has the authority to collect the decedent’s assets, file and pay estate and income taxes, pay the debts of the decedent and sell real property that was not specifically bequeathed.

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