In a proceeding to probate a will in New York State, all the heirs of the deceased testator must consent to the will being admitted to probate or be served with a citation. The citation advises the heir that a last will and testament will be offered for probate on a certain date and if they or their attorney don’t appear at the court’s calendar call, it is deemed that they consent. If heirs appear that have been disinherited or otherwise left less than their intestate share, a will contest may ensue substantially delaying or even denying probate of the will.
During this time, a proposed executor may need to administer the estate, that is, collect estate assets, pay bills, file tax returns and manage estate assets that would otherwise be in jeopardy of decreasing in value. In such a case a nominated executor can apply for “Preliminary Letters Testamentary.” A petition for preliminary letters and a preliminary executor’s bond must be filed with the court. Upon the filing of the petition and bond, the nominated executor will be appointed a “preliminary executor” and issued preliminary letters testamentary. A preliminary executor has the same powers that an executor would have to administer the estate but may not, however, make any distributions to beneficiaries under the will which is being contested and must instead take measures to preserve those assets.
If you are a nominated executor and anticipate a delay in probate due to a will contest or are already involved in a will contest, you should discuss obtaining preliminary letters testamentary with your attorney.
