My colleagues have written on the enforceability of in terrorem clauses, and the courts continue to confront challenges in reconciling the testator’s intent to impose an in terrorem condition with the rights of beneficiaries to challenge the conduct of their fiduciary. The New York County Surrogate’s Court’s recent decision in Matter of Merenstein provides further
Who May Serve as Fiduciary?
Surrogate McCarty of Nassau County recently addressed a case in which the parents of a deceased minor each sought letters of administration, alleging that the other was ineligible. Frank Santoro discusses the decision, as well as general rules of eligibility to serve as a fiduciary, in our most recent entry.
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Lessons From the Bench: Remedies for Breach of Fiduciary Duty
Courts may implement various remedies when a fiduciary fails to comply with an order to account. This was recently illustrated by Surrogate Holzman’s decision in In re Brissett, which Ilene Cooper discusses in this week’s entry.
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Estate Fiduciary Wrongly Deprived of Counsel of Choice?
Last week, the Second Department overturned a determination of the Kings County Surrogate’s Court that had disqualified an executrix based upon her selection of counsel. But while holding that letters should be reinstated, the Appellate Division also directed the fiduciary to obtain new representation. Eric Penzer discusses the decision in this week’s entry.
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Beneficiary Participation Irrelevant to Allocation of Trustees’ Litigation Costs
Legal fees incurred by fiduciaries in connection wtih their stewardship are generally chargeable to a trust or estate as a whole. This week’s blog entry discusses a recent case in which non-objecting beneficiaries sought to allocate trustees’ litigation costs solely to the objecting parties’ interests.
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Court Rejects Executor’s Attempt to Sell House To Herself For $10
This week’s entry discusses a recent decision rejecting an executor’s attempt to “sell” the decedent’s house to herself for the price of $10.
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Powers of a Nominated Executor to Litigate Prior to the Issuance of Letters
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.
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