Matter of Eversley

[*1] Matter of Eversley 2005 NY Slip Op 50916(U) Decided on June 13, 2005 Surrogate's Court, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 13, 2005
Surrogate's Court, Nassau County

In the Matter of the Estate of Emily Eversley, Deceased.



335611

John B. Riordan, J.

In this estate the preliminary executors request an extension of the time to file a renunciation of certain assets the decedent would succeed to as a result of the prior death of her husband.

A renunciation is required to be filed with the court within nine (9) months after the effective date of the disposition, which filing can be extended in the discretion of the court for reasonable cause (EPTL 2-1.11[b][2]). The effective date of the disposition in this case is the date of death of husband on February 1, 2004 (EPTL 2-11[a][2]). In addition, since this is the estate of a decedent a renunciation must be authorized by the court prior to filing (EPTL 2-1.11[c]).

While the application describes the petitioners as "co-executors" they have only been issued preliminary letters and the Will offered for probate is presently being challenged by a distributee who has filed objections. Unfortunately, the petitioners make no mention of this very important fact. Until those objections are resolved the eventual beneficiaries of this estate remain uncertain and a renunciation at this time would certainly prejudice some of the intestate distributees should the Will be denied probate. The need for oversight of the court in reviewing requests for authorizations to renounce on behalf of decedents is certainly made manifest in this estate.

It is noted that the petitioners have not requested that any authorization be granted nunc pro tunc as of the date of a purported renunciation acknowledged by the two named co-executors. While it has been observed that the court can extend the time for filing there is no provision in the statute for filing nunc pro tunc (Matter of Lee, 155 Misc 2d 689 [1992]; Matter of Engel, NYLJ, Dec. 6, 2001 at 23, col 3). The petition is granted to the extent of extending the time to obtain the authorization and filing of any renunciation within sixty (60) days following the disposition of the pending contested probate proceeding.

Submit order.

Dated: June 13, 2005

John B. Riordan

Judge of the

Surrogate's Court