Expediting Relief in Probate Proceedings

Q: I am the executor of my close friend’s Will, but I cannot locate any of her immediate family members. How can I administer her estate in the middle of a lengthy probate process?

A: A probate proceeding is always required when a person dies with assets solely in her name. Merely being named in a person’s Will as the Executor is not enough for institutions to rely on your authority; often, you will need formal Letters Testamentary from the Surrogate’s Court before you can take action on behalf of the estate.

Probate proceedings can be lengthy, especially if family dynamics are complicated, or if you do not have familiarity with the estate assets. Unfortunately, nominated Executors do not always have time on their side: if they need urgent access to the estate assets, especially if the estate contains real property, an extensive proceeding may cause harm to the estate.

Thankfully, proposed fiduciaries have recourse in the form of Preliminary Letters Testamentary. Under Section 1412 of the Surrogate’s Court Procedure Act, a proposed fiduciary may apply for these Preliminary Letters, which allow them preliminary authority to make decisions on behalf of an estate.

Applying for these Preliminary Letters is a separate application from the probate petition, and the Court reviews such requests on a case-by-case basis. In this application, the Petitioner sets forth all known estate assets and their approximate values, as well as a brief explanation of why expedited authority is needed. If the Court determines that there is risk to the estate in the form of potential waste, unpaid bills, or property that requires repairs or safeguarding, they will likely issue these Preliminary Letters while the overarching probate matter remains pending.

The Preliminary Letters may include limitations, such as an expiration date, or a “cap” imposed on the collection of assets. They may also include a requirement that the fiduciary obtain a surety bond for the estimated value of the assets, to ensure that they are in compliance with the law and that the assets are protected. These limitations and requirements vary by county and individual circumstances of each estate, so no two applications are alike, in this regard.

With the Preliminary Letters, the fiduciary can take steps to collect assets, make decisions on behalf of the estate, and even list and sell real property on the open market. However, the fiduciary cannot make any distributions of assets or satisfy any bequests until full Letters Testamentary issue from the Court.

In short, while expedited authority to act on behalf of the estate is a possibility, the Court grants this authority on a case-by-case basis, and it comes with certain restrictions. If you are an Executor and need to move forward with a proceeding where urgent relief is needed, an experienced estates attorney will help you determine the best approach.

By Frank Oswald, Esq.

Frank Oswald, Esq. is an associate attorney at Burner Prudenti Law, P.C. focusing his practice areas on Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island.