What Authority Does a New York Executor Have Before Letters Are Issued?

A New York executor named in a will has the authority to pay reasonable funeral expenses and to take action as is necessary to preserve the estate before letters are issued.

New York EPTL §11-1.3 states:

An executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, except to pay reasonable funeral expenses, nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it.

Can a New York Executor Dispose Of Assets Before Letters Are Issued?

No, as explicitly stated in EPTL §11-1.3, a New York executor “has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted.”

Disposing of estate assets should not be done by a named executor prior to issuance of letters.  Prematurely disposing of estate assets exposes the named executor to liability  and lawsuits from beneficiaries of the estate.

Can a New York Executor Start Litigation on Behalf Of the Estate Before Letters?

Yes, a New York executor is permitted to begin litigation on behalf of the estate before letters are issued, if necessary to preserve the estate.  Whether or not the actions taken by the executor are for the preservation of the estate is determined on a case-by-case basis.

In Estate of Pavese, the Surrogate’s Court, Nassau County determined that the nominated executor was permitted to bring an action to enjoin a decedent’s surviving spouse from withdrawing or transferring certain assets, where the decedent was in the midst of a divorce when he died.  The Court recognized that the named executor was permitted to take action to preserve the assets of the estate.  The assets risked being reduced or depleted if the surviving spouse was not enjoined.

In Gaentner v. Benkovich, the nominated executrix sought to set aside a conveyance of real property that occurred shortly before the decedent’s death.  The nominated executrix asserted that the conveyance was the product of duress.  Respondent moved to dismiss the claim on the basis that the nominated executrix lacked standing, because letters had not been issued.  The Court stated:

“[T]he authority of an executor is derived from the will, not from the letters issued by the Surrogate” (Matter of Yarm, 119 AD2d 754 [1986]), and prior to the issuance of letters testamentary, a nominated executor has the duty to preserve estate assets for the protection of those persons eventually entitled to receive them (see EPTL 11-1.3). Accordingly, Sharon Gaentner had the authority, in her capacity as nominated executrix, to maintain the second cause of action to recover and preserve an asset alleged to have been wrongfully diverted from the decedent’s estate (see Matter of Yarm, supra; see also, Spatz v Bajramoski, 214 AD2d 436 [1995]).

Does a Nominated Executor Have A Duty To Preserve Assets Before Letters Are Issued?

In some New York cases it has been held that a nominated executor who has a special relationship with the decedent has a duty to take action to preserve the assets of the estate even before letters are issued.  In Matter of Donner, the named executors were decedent’s longtime attorney and her longtime personal financial advisor.  Because of their particular relationship with the decedent, the executors were found to have a duty to preserve the assets of the estate from the moment of death:

First, while the authority of executors is derived from the will (Hartnett v Wandell, 60 N.Y. 346, 349-350), it is clear that, in this case, the coexecutors had a duty to preserve the assets of the estate even prior to obtaining letters testamentary. This is true since Miller was responsible for investment decisions at the time of the decedent’s death. Indeed, he made those decisions long before her death. Given their relationship to the testatrix, the executors had a duty to preserve the assets of the estate from the moment of death to insure that they were protected for the persons or entities eventually entitled to receive them.

If you have been nominated to serve as an executor of a New York decedent’s will, a New York probate lawyer can advise you as to your authority and possible duties prior to the issuance of letters.

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Inna Fershteyn

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