In this probate proceeding the decedent’s son and sole distributee requested a conference with the court because the nominated executor under the propounded instrument failed to obtain the required bond directed by an order of this court dated August 28, 2017 granting his request for preliminary letters. On the initial conference date the attorney for the proponent stated that his client intended to resign and he would ascertain if the nominated successor executor intended to seek appointment. The parties also discussed scheduling of the SCPA 1404 examinations. On an adjourned date of that conference the son requested, inter alia, a date certain by which 1404s would be conducted and the attorney for the nominated successor executor informed the court and the parties that his client intended to seek appointment as successor executor.The decedent died on February 21, 2017. The propounded instrument, dated May 1, 2015, leaves one-half of the estate to the son in trust until his fiftieth birthday, and the other half of the estate to decedent’s siblings, per stirpes. On the original return date of citation in October of 2017, the son requested SCPA 1404 examinations and the matter was marked “1404s to be conducted and objections [to be served and filed] within 10 days of completion of the 1404s.” Counsel for the son explained that her attempts to schedule the examinations were stymied by the proponent’s attorney’s failure to communicate. Moreover, she points out that the assets of the estate are “languishing” because of the proponent’s failure to file a bond, obtain letters and open an estate bank account. At the conference with the court counsel requested permission to seek appointment of the son as temporary administrator of the estate given proponent’s failure to act expeditiously while counsel for proponent stated his intent to promptly file a petition on behalf of his client, the nominated successor executor, including a request for preliminary letters testamentary.On this state of the record, this decision constitutes the order of the court directing the examinations of the attesting witnesses and drafting/supervising attorney to be conducted on or before May 24, 2019. The son is to serve and file his objections, if any, by June 7, 2019. Should counsel for the proponent fail to produce the witnesses for examinations as directed herein, the court will entertain an application to dismiss the probate petition. Furthermore, should the nominated successor executor fail to file her petition and request for preliminary letters testamentary by May 6, 2019, the son may settle an order appointing him temporary administrator of the estate.If no objections are filed, the parties are to appear at 9:30 a.m. in courtroom 406 on June 25, 2019 for a status conference. If objections are filed, the proponent or the son shall cause the issuance of a citation with a return date of June 25, 2019 (on the form provided by the court) and serve copies of the citation upon the decedent’s siblings who are named in the will as residuary beneficiaries of one-half of the estate and who have not appeared in this proceeding. Service of process shall be made by mailing copies of the citation by ordinary mail with U.S. Postal Certificate of Mailing and by Certified Mail, Return Receipt Requested. Service shall be made within the time provided by SCPA 308 and shall be deemed complete provided that the service by ordinary mail is not returned as undeliverable.A copy of this decision and order, and the citation, as and if necessary, shall be served upon all counsel who have appeared. Respective counsel and any party who desires to be present shall appear on the return date of the citation prepared to discuss the underlying issues and a disclosure schedule.The Chief Clerk shall mail a copy of this decision and order and the form of the citation, as and if necessary, to counsel for the proponent and counsel for the son.Proceed accordingly.
