In New York, although a practitioner might expect the Surrogate's Courts to act uniformly as part of the New York State Unified Court System, Surrogate's Courts in various counties may operate differently when assessing petitions. One example is with respect to restrictions placed on letters of administration. While under-restricting letters of administration may result in inadequate safeguards on the interests of non-consenting distributees, over-restricting letters could result in (i) a hindrance of a fiduciary's powers statutorily granted under EPTL §11–1.1, (ii) an unnecessary burden on the court's limited resources caused by additional applications to remove the restrictions, (iii) delayed administration of estates, and (iv) conflicts with the legislative intent as expressed in the Bennett commission.

In 1961, New York legislature created the temporary state commission on the modernization, revision, and simplification of the laws of estates, commonly referred to as the Bennett commission (Trusts and Estates Law; Statutory Powers of Fiduciaries Versus Court Oversight, N.Y.L.J, Nov. 14, 2006, at 3, col. 1). A goal of the Bennett commission when enacting legislation was to grant fiduciaries broad powers to administer decedents' estates pursuant to the provisions of EPTL §11–1.1 and minimize unneeded court intervention (Id.). Subsequently, there have been court decisions denying petitions wherein fiduciaries seek permission to obtain powers they already possess, and instead holding that the surrogate generally should not usurp fiduciaries' powers (See, e.g., In re Osterndorf, 75 Misc. 2d 730 [Sur. Ct. Nassau County 1973] [holding that the administrator should exercise business judgment utilizing the powers already afforded to him]; In re Blackman, 2007 WL 7625228 [Sur. Ct. Kings County 2007] [holding that fiduciaries should "exercise the authority given to them and not seek court approval"… "unless there was a real need"], Matter of Hamilton, N.Y.L.J., Jan. 29, 2014, at 22, col. 6 [Sur. Ct. Bronx County 2014] [stating that "another court order is not necessary to permit the administrator to exercise her rights and responsibilities as a fiduciary" and "[i]f that were so, duplicitous applications would waste the court's time and overly tax the court's limited resources"]). The more letters are over-restricted, the more fiduciaries must return to Surrogate's Courts for amendments and/or additional proceedings. Thus, in our view, it is important for Surrogate's Courts to find the least restrictive way to limit letters of administration within the boundaries of the law while still providing sufficient protection for non-consenting distributees of the estate.