Questions often arise regarding a nominated executor’s authority to commence an action on behalf of the estate prior to the issuance of letters testamentary.  These must be answered on a case-by-case basis.

In general, the authority of an executor “is derived from the will, not from the letters issued by the Surrogate” (see Matter of Yarm, 119 AD2d 754 [2d Dept 1986]).  Thus, the executor’s duty to preserve estate assets arises immediately upon the testator’s death. 

Pursuant to EPTL §11-1.3, a named executor of a will that has not yet been admitted to probate “has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, . . . nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it” (emphasis added).  It is the language of this statute, and the similar words of its predecessor, Surrogate’s Court Act §223, that the courts have used as a guide in determining the circumstances under which named executors without letters may commence actions on behalf of the estate for which they are nominated to serve.  Because the statute provides that a named executor may take actions that are necessary to “preserve” an estate, courts’ interpretations of the statute have established a fine line between those actions that are commenced for purposes of preservation, and those that constitute “active management” of estate affairs.   



In Gaentner v Benkovich (18 AD3d 424 [2d Dept 2005]), the nominated executrix sought to set aside a conveyance of real property that occurred less than three months before the testator’s death, asserting that the transfer was the product of duress. The respondent moved to dismiss the claim alleging that the petitioner lacked standing because letters testamentary had not yet issued. The Second Department rejected this argument, stating that the designated executrix was entitled to maintain an action “to recover and preserve an asset alleged to have been wrongfully diverted from the decedent’s estate” (Gaentner v Benkovich, 18 AD3d 424, 426).

Similarly, in Estate of Pavese (NYLJ, Nov. 21, 2001, at 24, col 6 [Sur Ct, Nassau County]), the decedent had been in the midst of a divorce action at the time of his death. The individual named as the executor in the decedent’s will, which had not yet been probated, commenced an application to enjoin the decedent’s surviving spouse from withdrawing or transferring certain assets (id.). The Court entertained the application, recognizing the standing of the nominated executor to take action to preserve the assets of the estate. A comparable situation was presented by In re Del Principe’s Will, 157 NYS 2d 212 (Sur Ct, Westchester County 1956), where the decedent died holding all stock in a corporation. Upon his death, his spouse directed the company to pay her a weekly salary. At a subsequent corporate meeting, the nominated executor acted to nullify the widow’s instructions. The Surrogate upheld the executor’s actions, opining that they constituted a preservation of estate assets.

In contrast, Blood v Waszak (147 Misc 729 [Municipal Ct, Richmond County 1933]), addressed the issue of whether a named executor who had not yet received letters had the authority to bring suit to recover a debt due to the testator. The court held that this type of action could not be deemed instituted for the preservation of the estate (id.; see Carmody-Wait 2d §152:26 (2008) [citing Blood v Waszak for the proposition that an action to recover a debt due an estate will not be considered necessary for the preservation of an estate and thus must be dismissed for want of capacity to sue]; 16A McKinney’s Forms, Estates and Surrogate Practice §11:126 [2007]).

EPTL §11-1.3 and its predecessor statute have been applied to permit the commencement of actions by designated executors to ensure that assets, which are a part of the estate at the time of the decedent’s death, remain therein. This is the commonsensical definition of preserving estate assets. It should be noted, however, that such preservation extends to allow a named executor to commence an action to retrieve assets wrongfully diverted into the possession of others, yet does not apply to actions for the recovery of a debt due to the estate. The fine line between these scenarios appears to distinguish assets that were owed to the decedent or were legally outside of the decedent’s possession at the time of death, from those assets which may have been improperly obtained by others, but belong to the estate. Only the latter are actionable by an executor prior to the receipt of letters. 

With respect to those situations in which litigation by a nominated fiduciary is appropriate, the Court of Appeals decision in Matter of Donner, 82 NY2d 574 (1993) should be considered.  In Donner, it was held that the named executors breached their fiduciary duty by failing to act prudently to prevent losses in estate investments, despite the fact that letters had not yet issued.  Thus, it is arguable that the statutory duty to preserve assets extends to require the nominated fiduciary to commence litigation when necessary.