Over 50 years ago, the Legislature created the office of preliminary executor, an appointment that allowed for immediate, prompt, ex parte application for preliminary letters testamentary. The preliminary executor has all the powers of a full fiduciary except the power to distribute. If a will directs a nominated executor to post a bond he or she must do so to obtain preliminary letters testamentary. Where a will explicitly dispenses with the filing of a bond, the court has discretion to require the filing of a bond but should not do so unless it determines that there are extraordinary circumstances which warrant the filing of a bond for preliminary letters testamentary.
In 1993, an amendment was made to SCPA Section 1412, the statute governing preliminary letters testamentary.1 It added the following language to Subsection 5 of SCPA 1412 which relates to the bonding of preliminary executors:
Where the Will explicitly dispenses with the filing of a bond, the Court shall grant such letters without bond, unless it determines there are extraordinary circumstances in the particular case to warrant the filing of a bond, in which case the Court shall have the discretion to require the person seeking such letters to file a bond in such amount as the Court deems advisable (emphasis added).
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