Petitioner, decedent’s granddaughter and the nominated substitute executor, Megan Whittemore, seeks probate of a propounded instrument, dated October 2, 2015, as the Last Will and Testament of the decedent, and seeks Letters Testamentary be issued to her. Decedent died on October 23, 2016, three (3) weeks after executing his attorney drafted Last Will & Testament in the Brooklyn Department of Veterans Affairs Hospital. The Decedent was suffering from an inoperable brain tumor and was in declining health prior to his death.Anticipating there will be a delay in the completion of the probate proceeding, including a likely probate contest, the substitute executor now petitions for preliminary letters testamentary pursuant to SCPA §1412, citing the need to investigate whether decedent has additional assets beyond the real estate he owned at the time of his death. The real estate was sold by Debra Whittemore, decedent’s daughter and the nominated executor, who did not petition for letters, and his son, Robert Whittemore. Both claim that they entered a contract for the sale of decedent’s house and closed on it, without knowledge that a Will existed. A Temporary Restraining Order (TRO) remains in effect prohibiting the distribution of the proceeds of the sale and preventing the purchasers of the house from altering the property pending further proceedings.In their opposition to the petition for preliminary letters decedent’s daughter, Debra Whittemore and son, Robert Whittemore, the father of petitioner, Megan Whittemore, make it clear there will be a Will contest, alleging, at least, undue influence by the petitioner. They are both beneficiaries under the Will. They seek the appointment of the Public Administrator of Richmond County as temporary administrator of the estate during the Will contest.Petitioner argues that the statute provides that “upon due qualification and upon the issuance of process, preliminary letters testamentary must thereupon be issued to the person or persons who appear to the Court to be entitled thereto.” Matter of Mandelbaum, 7 Misc 3d 539, 794 NYS2d 623 (Sur Ct Nassau County 2005). However, the Court still has the discretion to refuse to grant a nominated executor preliminary letters if it believes that he or she is not an appropriate interim fiduciary. Matter of Smith, 71 Misc 2d 248, 336 NYS2d 68 (Sur Ct Erie County 1972), where the Surrogate named the public administrator because of allegations of undue influence by the nominated executor and because of the mental and physical infirmities of the decedent.In the alternative, the Surrogate can grant preliminary letters with specific restrictions and limitations to the petitioner, in part, to save the estate the expenses associated with the appointment of the Public Administrator.The Court believes the second alternate is the best given the likelihood of protracted probate proceeding. Therefore. Preliminary Letters Testamentary pursuant to SCPA §1412 shall be issued to petitioner, Megan Whittemore, decedent’s granddaughter and the nominated substitute executor under his Last Will and Testament. However, the letters will be limited and restricted as follows: 1) to the determination of the existence of any estate assets, but not for their collection without further order of this Court; 2) to executed any all authorizations that the Court approves as part of the discovery process (i.e., HIPPA forms, etc.); 3) to permit the preliminary executor to appear as a party on behalf of the estate in any proceeding related to this matter in this Court. There are to be no distributions of any kind whatsoever without further order of this Court.Accordingly, the matter is adjourned to May 15, 2019, at 10:30 a.m., for a conference with the Court’s Law Department to set a discovery schedule, if requested, and schedule SCPA §1404 examinations.The Clerk of the Court is directed to mail a copy of this Decision to all attorneys who have appeared in this matter by regular mail.This Decision shall constitute the Order of this Court.Dated: April 16, 2019
