ADDITIONAL CASESPetition for Issuance of Letters of Temporary Administration in the Estate of Bruce Davis, Deceased.; 2018-2903/E Before the court are competing applications seeking appointment of interim fiduciaries pending an anticipated probate contest. Decedent’s brother seeks appointment as preliminary executor incident to the probate proceeding. One of decedent’s sons has commenced a separate proceeding for issuance of letters of temporary administration to himself and his mother, decedent’s spouse. Decedent died on June 14, 2018, survived by a spouse and three children and leaving a multi-million-dollar estate. Decedent’s brother has offered for probate a holographic will, dated January 29, 2008, in which he and decedent’s spouse are named as co-executors and co-trustees. The spouse concedes, however, that, under a separation agreement between her and decedent, she waived her right to act as a fiduciary of decedent’s estate. In light of her waiver, decedent’s brother has applied, pursuant to SCPA 1412, for the issuance of preliminary letters testamentary to himself alone. Also in light of her waiver, the son asks that decedent’s spouse be appointed as his temporary co-fiduciary, as his designee.Letters are issued to a fiduciary pending final disposition of an ongoing probate proceeding in order to insure protection of the estate in the interim, whether the appointment is for a temporary administrator under SCPA 902 or for a preliminary executor under SCPA 1412. Although both statutes are involved here, evaluation of the competing applications requires an initial recognition of the implicit premise of section 1412, i.e., that a propounded instrument reflects the decedent’s presumptive choice of fiduciary and should not be lightly discounted even when that instrument’s validity remains at issue (see, e.g., Matter of Lurie, 58 AD3d 575 [1st Dept 2009]; Matter of Haber, NYLJ, Aug. 31, 2009, at 24, col 2 [Sur Ct, Bronx County]; Matter of Bodan, NYLJ, Feb. 14, 2014, at 27, col 4 [Sur Ct, Nassau County]).When estates are embroiled in probate contests, courts are reluctant to add to the estate’s burden another layer of litigation as to the nominated fiduciaries’ fitness for interim office (see Matter of Vermilye, 101 AD2d 865 [2d Dept 1984]; Matter of Hernesh, NYLJ, Nov, 16, 2012, at 23, col 2 [Bronx County]; Matter of Graziano, NYLJ, June 20, 1991, at 30, col 6 [Bronx County]). Under such circumstances the courts most often appoint the decedent’s presumptive choice of fiduciary while at the same time responding to disputed allegations concerning the appointee by providing a safety net for the estates in question, i.e., by imposing a bond or limiting the apointee’s authority (see Matter of Vermilye, supra; Matter of Bodan, supra). Here, the nature of the son’s allegations in opposition to the appointment of decedent’s brother suggests that a bond in an appropriate amount be required to protect the estate. Accordingly, preliminary letters testamentary with restrictions on the sale of real property shall issue to Jonathan T. Davis upon his posting a bond in the sum of $444,000.Settle decree providing for compensation of the guardian ad litem.Dated: October 26, 2018
