Your parent died in the middle of winter. Your parent rented out the upstairs portion of their home. The tenant called and said the heater blew and he is withholding rent. Your parents financial advisor just called and said that he needs access to sell some of the portfolio holdings to mitigate loss. And to make matters worse, you just found out that you may have a half-brother, who may be entitled to a portion of the estate.
You are not sure which problem you want to tackle first. But all three problems boil down to the same issue – you need Immediate Access to Decedent’s Assets and make some basic, important, and expeditious decisions on behalf of the decedent.
The solution: Preliminary Letters Testamentary (for when the decedent died with a will) or Temporary Letters of Administration (for when the decedent died without a will).
New York Surrogate’s Court Procedures Act (“SCPA”) Section 1412 allows the fiduciary named in the Decedent’s Will to petition the Court for immediate authority to handle the Decedent’s affairs. Similarly SCPA 901 allows an interested party to petition the Court for immediate authority to handle the Decedent’s affairs.
The Decedent’s fiduciary (be it person named in Will or next of kin who will be handling Decedent’s affairs) should petition the Court and request immediate access. The fiduciary will need to provide a short explanation of why immediate access is necessary, be it to pay bills, have authority to commence an eviction proceeding, have authority to make financial decisions, safeguard property, or repair property. While the fiduciary may have immediate access to funds to ensure the safekeeping of the property and proper administration of the estate, the fiduciary may not distribute any assets to satisfy a legacy or bequest until full letters are issued.
Although the Court may grant immediate access to Decedent’s assets, the Court may also impose limitations. For example, although the Court may allow a fiduciary to pay the bills of the estate, the Court may also limit how much of the assets the fiduciary may collect. The Court may also request that the Fiduciary post a bond as a way to safeguard assets for the rest of the Decedent’s heirs. For example, when the estate may be contested, the Court may want to ensure that Decedent’s assets are protected. (Certain counties, such as Queens, may request that you pay a fee for the filing of the bond.)
Preliminary Letters or Temporary letters are usually valid for 6 months at a time so the fiduciary will need to act quickly and renew if necessary.
In short – yes – immediate access is possible but, with restrictions.
Additional resources provided by the author
For more information, please contact estate planning attorney Regina Kiperman:
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
New York, NY 10038
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