Before the court is an application to further extend preliminary letters testamentary in the context of a contested probate proceeding. Objections to the application have been filed.

As noted in this court's Decision No. 27670, issued on December 1, 2011, Jeanette Milbauer died on February 18, 2008. She was survived by her two daughters, Karen Silverman (hereinafter, "Karen"), the applicant, and Joan Husserl (hereinafter, "Joan"), the objectant. Karen offered an instrument for probate, dated December 20, 2007, in which she is nominated as the executor. Joan objected to probate. Preliminary letters testamentary issued to Karen on April 6, 2010 and were extended on December 7, 2011, despite objections filed by Joan. Karen now seeks a further extension of her letters.

In the objections filed in connection with the previous request for an extension of preliminary letters, Joan argued that Karen intentionally allowed her preliminary letters to expire, while continuing to write checks out of the estate account, including checks that Karen wrote to herself. Joan also noted that Karen used estate funds to install windows in a home that she claimed had been transferred to her by the decedent, and deducted the expense on decedent's estate tax return. In its decision, this court noted that the issues raised by Joan should be addressed in a plenary proceeding for revocation of preliminary letters under SCPA 711, rather than by objection to an application to extend such preliminary letters.

In the objections filed in connection with the present application, counsel for Joan again notes the fact that Karen allowed her letters to expire, and that during the period in which Karen's letters were expired, she held herself out as the fiduciary, wrote checks (including checks to [*2]herself), and collected rents. Counsel for Joan points out that Karen continues to maintain that the expenses she paid while her letters were expired were "reasonable and necessary," and that Karen admitted that there are assets not yet marshaled. Further, counsel notes, Karen did not file her accounts until forced to do so, and has still not filed an account for the 2000 Trust. Counsel concludes by asking the court to (1) deny the application for an extension of letters, (2) suspend Karen from acting as a preliminary executor of decedent's estate, (3) appoint the Public Administrator as temporary administrator during the pendency of this proceeding, (4) revoke preliminary letters issued to Karen, and (5) issue permanent letters of administration, c.t.a., to the Public Administrator.

The court may consider revocation of preliminary letters testamentary, pursuant to SCPA 1412 (6), on the basis of (a) unreasonable delay by the executor in the probate proceeding; (b) any reason for revocation set forth in SCPA 719; or (c) "the best interests of the estate."

Preliminary letters may be revoked or suspended where the fiduciary's conduct is deemed improvident (See Matter of Edelman, NYLJ, Nov. 19, 2009, at 38, col 6 (Sur Ct, Richmond County). In Edelman, which involved a dispute between two sisters, the court found improvident conduct where the preliminary executor refused to communicate with counsel, refused to cooperate in the sale of decedent's real property while living there without paying rent, and refused to defend the estate in a foreclosure action. The court suspended the preliminary executor's letters and scheduled an immediate hearing because of the urgency of the pending foreclosure action. In another decision, rendered in New York County, which also involved a dispute between two sisters, preliminary letters were suspended pending a hearing on the fiduciary's fitness to serve after the fiduciary admitted making distributions to herself, litigated unreasonably and refused to account (Matter of Taschereau, NYLJ, May 18, 2006, at 27, col 35 [Sur Ct, NY County]). The court particularly noted the fiduciary's lack of understanding concerning her role (id.).

In considering Joan's objections to Karen's present application, the court will focus on Karen's conduct as a fiduciary during the time period following the extension of her letters on December 7, 2011. Counsel for Joan asserts that after Karen's letters were renewed: (1) Karen admitted, in an affidavit dated June 11, 2012, that there are estate assets which she has not yet marshaled; (2) the two accounts ordered by the court in connection with the 1995 Hazel R. Flicker Trust were filed late, with errors and without signed summary statements; (3) Karen's account as attorney-in-fact was filed late, and it shows that Karen still holds $1,332.87 as attorney-in-fact, four years after the decedent's date of death ; and (4) to date, Karen has still not filed her court ordered account in connection with the 2000 Hazel R. Flicker Trust.

Although, as noted above, the court's discretionary power to revoke preliminary letters is broader than its power to revoke full letters testamentary, the court does not find that the revocation of the preliminary letters issued to Karen, and the appointment of a new administrator, would be in the best interests of the estate at this time. The unmarshaled assets referred to in Karen's affidavit dated June 11, 2012, and cited by the objectant, were described as "minor items." Judicial accounts have been filed, albeit with a few weeks delay. Appointing a new administrator would undoubtedly cause additional delay.

At the same time, the court expects the preliminary executor's full and immediate [*3]compliance with its directives and the fulfillment of the fiduciary's outstanding obligations. In the event that the preliminary executor proves incapable or unwilling to timely fulfill her obligations and comply with this court's directives as set forth below, her letters will be revoked without further process.

Petitioner's present application for an order extending preliminary letters testamentary is granted. The preliminary executor is ordered to complete all of the following actions within 30 days of the date of this decision:

1. Marshall all estate assets, including the funds held as attorney-in-fact, and deposit all proceeds into the estate account or into the estate name.

2. Amend the two accounts filed in connection with the 1995 Hazel R. Flicker Trust and submit them with signed summary statements.

3. File a judicial account as preliminary executor of the Estate of Jeanette Milbauer, deceased trustee of the 2000 Hazel R. Flicker Trust.

4. File an affidavit with the court, with service upon counsel for Joan Husserl by mail, stating that the preliminary executor has fully complied with these directives within the time frame provided by the court.

Karen's failure to fully follow these directives will result in her removal without a hearing and the appointment of the Public Administrator as the administrator, c.t.a. upon his qualifying for office.

The order noticed for settlement will be signed if found to be in proper form.

This constitutes the decision and order of this court.

Dated: June 14, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court