Preliminary Letters Testamentary in Probate Court

By: Roman Aminov, Esq.

If you have been named as the executor of a decedent’s last will, you don’t have authority to sell or distribute their assets until you have been appointed by the Surrogate’s court. That process, called probate, can take many months, especially if someone is contesting the will. The appointment of an executor is formally made in a decree by the court and is evidenced by the issuance of Letters Testamentary. But what happens in the meantime as the decedent’s property sits unmanaged? Who is responsible for paying taxes on the home or maintenance on the co-op? Who will file the decedent’s taxes or winterize the home? This article will discuss Preliminary Letters Testamentary, a fast and efficient option for a named executor to handle the affairs of a decedent even when the probate process drags out.

Which Situations Warrant Preliminary Letters?

Every estate is different and there are a number of situations which may warrant the nominated executor seeking preliminary letters. Generally, preliminary letters are necessary when estate assets need to be managed quickly and a delay is anticipated. Some common fact patterns involving preliminary letters are:

  1. Difficulty in locating the witnesses to the will so they can produce an affidavit or testimony regarding the execution of the will.
  2. A will contest by a disgruntled family member, which may delay probate for months or years.
  3. A delay in locating the heirs of the decedent.
  4. An imminent matter such as a pending foreclosure sale which requires immediate attention even if probate isn’t expected to be delayed.

There are many situations which require quick action on the part of the executor and preliminary letters should be considered in these cases.

What are Preliminary Letters?

Preliminary letters give the person named in the will, known as the nominated executor, substantially all of the rights that a full fledged executor has, with the notable exception of the right to distribute the assets to the beneficiaries. A preliminary executor has authority to:

  1. Collect assets.
  2. Pay estate and income taxes.
  3. Pay debts of the estate.
  4. Sell real property that wasn’t specifically gifted to a beneficiary.

In addition, the court has the right to restrict or expand the rights of a preliminary executor as it deems appropriate.

What is the Process for obtaining Preliminary Letters?

Typically, a request for preliminary letters is made by the nominated executor in the will when he or she files the probate petition, although it can be requested at any time prior to the issuance of permanent letters testamentary. The court, in its discretion, can deny preliminary letters to the petitioner if it sees fit.

While there is an official form for the application for preliminary letters, it is best to verify with the court, as each Surrogate’s Courts may have their requirements for the form. In addition, some courts, including Queens Court require a bond to be posted, while others may not. Preliminary letters are revoked as soon as full letters testamentary are issued.

As with all important legal matters, you should discuss your particular situation with your attorney prior to seeking, or refraining from seeking, preliminary letters.

Roman Aminov, Esq. is a NYC based estate and probate lawyer. Call 347-766-2685 for a free phone consultation.

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