In this probate proceeding objections have been filed to the application for the issuance of preliminary letters testamentary to the nominated executor. The decedent Bettina Boynton, a/k/a Bettina Boynton Fuentes, died February 28, 2012 at the age of 92. Her will, dated August 24, 2009, does not provide for nor even mention any family members. The entire estate, valued at approximately $1.4 million, is left to friends and charities. The will was prepared by Logan Fulrath, Jr., an attorney who is also the nominated executor.

Objections to the issuance of preliminary letters testamentary to Mr. Fulrath have been filed by Victoria Klement, a beneficiary, and by Alexander Hakopian, an attorney, on behalf of his client Linda Pardy, also a beneficiary and described in the objections as a maternal first cousin of the decedent. The objectants are united in their belief that preliminary letters should not issue to Mr. Fulrath based on, among other things, the extreme delay in offering the will for probate and his failure to take any steps to secure the assets of the estate since the death of the decedent over two years ago.

The objectants contend, and Mr. Fulrath has not disputed, that Mr. Fulrath took no steps to offer the will for probate or secure any of the estate's assets. It is alleged, again without rebuttal, that Ms. Klement tried for months to have Mr. Fulrath offer the will for probate or to at least provide her with a copy of the will; Mr. Fulrath did neither. Ms. Klement then retained an [*2]attorney who wrote to Mr. Fulrath and asked for a copy of the will and a status report on his efforts to have the will admitted to probate. Mr. Fulrath called Ms. Klement's attorney on

The objectants contend that due to Mr. Fulrath's neglect of the matter, real estate and estate taxes have gone unpaid and are accruing unnecessary interest and penalties. The decedent's home in Manhasset, New York has been uninhabited and may have been damaged by vandals. Damage to the home from Hurricane Irene in 2011 remains unrepaired. The decedent's stock and cash accounts have similarly been left unmonitored for two years since the decedent's death. The court notes that despite the fact that the will and probate petition were filed in December 2013, Mr. Fulrath to date has not provided a family tree affidavit or submitted a citation or taken any other objective steps to prosecute the probate proceeding. Objectants are concerned that, given Mr. Fulrath's proven inattention to the matter and the fact that a genealogist may be necessary to identify the decedent's heirs because Mr. Fulrath failed to glean that information from the decedent herself, further inordinate delay will ensue if completion of the probate proceeding is left in Mr. Fulrath's control. The court shares that concern.

It is perhaps axiomatic that the nominated executor has priority to the issuance of preliminary letters testamentary (Matter of Tartaglia, NYLJ Sept. 18, 2006 at 48 [Sur Ct, Nassau County]). Nevertheless, for good cause shown the court may decline to appoint the nominated executor (SCPA 1412 [2]). The good cause necessary to deny preliminary letters to a nominated executor may be established by a showing of bona fide allegations of misconduct or wrongdoing (Matter of Vermilye, 101 AD2d 865 [2d Dept 1984]). Upon such a showing, it is within the discretion of the Surrogate to issue letters of temporary administration to the Public Administrator (Matter of Scamardella, 169 Misc 2d 55 [Sur Ct, Richmond County 1996], affd 238 AD2d 513 [2d Dept 1997]). It is also undeniably true that a nominated executor has "a duty to preserve the assets of the estate even prior to obtaining letters testamentary" (Matter of Donner, 82 NY2d 574, 584 [1993]).

Here, the nominated executor has displayed such a level of inattention to preserving the assets of the estate, especially in light of the fact that he is a practicing attorney, that the court is convinced that the assets of the estate may be in peril if he were to receive preliminary letters testamentary.

Accordingly, the application for preliminary letters testamentary is denied and letters of temporary administration will issue to the Public Administrator of Nassau County upon duly qualifying. In addition to the normal duties of marshaling and protecting the assets of the estate, the Public Administrator is also directed to take all steps necessary to have the propounded instrument admitted to probate.

The Clerk of the Court is directed to mail a copy of this decision and order to the Public [*3]Administrator of Nassau County.

This decision constitutes the order of the court and no additional order need be submitted.

EDWARD W. McCARTY III

Surrogate's Court