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Warren's Heaton on Surrogate's Court Practice
Copyright 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

3-44 Warren's Heaton on Surrogate's Court Practice 44.syn


Letters Testamentary


Linda B. Hirschon, Greenberg Traurig, New York;Andrew L. Martin, Esq. Chief Court Attorney--Referee, Surrogate's Court, Nassau County;Eugene E. Peckham, Surrogate, Broome County;C. Raymond Radigan, Chairman, EPTL-SCPA Legislative Advisory Committee;Joshua S. Rubenstein;Peter N. Wells, former Surrogate, Onondaga County.

Chapter Summary


In New York's Surrogate's Court, after a will is admitted to probate, any person entitled to receive letters who appears and is qualified will be issued letters testamentary. Preference is given to an executor nominated in the will, when the executor appears and qualifies. Authority is derived from the will, and the letters are issued only after the will is admitted to probate. This chapter, from Warren's Heaton on Surrogate's Court Practice (Matthew Bender) discusses naming of an executor in the will, qualification of an executor, failure to qualify, renunciation, retraction of renunciation, and procedures and forms for issuance of letters testamentary and of supplemental letters. In addition, the chapter provides Official Forms for related Affidavits, Orders, and Petitions.

Under the SCPA, the right to serve as an executor depends on being named in the will, but it isn't necessary for the will to designate a specific person or make a formal designation of a fiduciary. The chapter covers designation of an unnamed person holding a position, and situations when a will doesn't formally designated a named fiduciary as an executor. In addition, the chapter covers eligibility requirements and disqualification of infants, incompetents, non-domiciliary aliens, and felons. The chapter also covers persons disqualified due to substance abuse or otherwise being unfit, including lack of understanding of the English language, and also disqualification of a former spouse. Due to the deference given to the testator's choice of who should administer the estate, specific procedures must be followed in order to exclude a nominated executor. The chapter provides Forms for required Affidavits, Petitions, and Orders which must be used to exclude a nominated executor.

A nominated executor isn't obligated to accept the appointment, but he can't condition renunciation on certain terms, for example naming a specific person in the alternative. However, the court liberally construes successors or substitute executors named in the will. If the fiduciary office is vacant, renunciation may be retracted, and the chapter reviews the court's discretion to accept or retract a renunciation, including specific procedures and Forms for Petitions and Orders related to renunciation and retraction of a renunciation.

Supplementary letters are issued when a person such as an infant or alien was previously disqualified, but conditions have changed before administration is complete. The chapter discusses procedures, and provides Sample Forms for Petition and Order for Supplementary Letters.

Warren's Heaton on Surrogate's Court Practice (Matthew Bender) provides comprehensive coverage and analysis of New York Probate and Estates practice issues. Accepted by the courts as the leading authority on practice in Surrogate's Court, topics include jurisdiction, intestacy, probate, appointment of representatives and guardians, estate administration, fiduciary duties, accounting, commissions and fees, litigation, Federal and New York estate tax, and construction of wills and trusts. The treatise covers case law affecting substance and procedure; analysis of SCPA, EPTL, and related statutes; procedural guidance; and over 1,000 forms including official New York Surrogate's Court Forms and current Federal and New York estate tax forms with explanations. The treatise also covers Reformation and Trust-splitting issues, Supplemental Needs Trusts, Uniform Transfers to Minors, and Revocable Living Trusts.


New York surrogate's court,surrogate's court in New York,letters testamentary in New York,executor of will in New York,Surrogate's Court Procedure Act,qualification of executor in New York,nominated executor in New York


For a complete discussion of jurisdiction and procedural matters, see Chapter 2, Jurisdiction; Powers of the Surrogate; Chapter 3, Court Rules; Chapter 4, Practice in General. For a comprehensive discussion of requirements for appointment as an executor, see Chapter 33, General Provisions Concerning Fiduciaries.


For forms of pleadings see Bender's Forms for the Civil Practice: Estate & Probate (Volumes 30 to 40) covering the Surrogate's Court Procedure Act (SCPA) and Estates, Powers and Trusts Law (EPTL) (Matthew Bender).

For substantive law statutes, see New York Civil Practice: EPTL (Matthew Bender).

For statutes relating to procedure, see New York Civil Practice: SCPA (Matthew Bender).

LexisNexis Answer Guide New York Surrogate's Court cites seminal cases and references to codes and court rules, and provides checklists and practice pointers (Matthew Bender).
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