Matter of Gulbrandsen

[*1] Matter of Gulbrandsen 2006 NY Slip Op 50551(U) [11 Misc 3d 1073(A)] Decided on April 5, 2006 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2006
Sur Ct, Dutchess County

In the Matter of the Estate of Rudolph G. Gulbrandsen, Deceased.



95038/2005



John K. Gifford, Esq.

Van DeWater & Van DeWater, Esqs.

Attorneys for Petitioner

Laura Klinski

40 Garden Street

P.O. Box 112

Poughkeepsie, New York 12602

Robert B. Dietz, Esq.

Dietz & Dietz, LLP

Attorneys for Cross-Petitioner

Christine Basler

Two Cannon Street, Suite 207

Poughkeepsie, New York 12601

Vincent L. Teahan, Esq.

Teahan & Constantino

Attorneys for Former Executrix

Sara Jane Guldbrandsen

41 Front Street, Suite A

P.O. Box 1181

Millbrook, New York 12545

Hon. James D. Pagones, J.

The decedent died testate on December 18, 2005. The will offered for probate is dated May 14, 2003.

In paragraph Seventh, the decedent appoints his wife, Sara Jane Gulbrandsen, to be the executrix. It has been brought to the court's attention that the wife has been charged with the death of the decedent. Proceedings against her are still pending in the County Court of Dutchess County.

Laura Klinski is appointed alternate executrix. The will provides that neither fiduciary will be required to post a bond, surety or other security in any jurisdiction.

On March 9, 2006, Sara Jane Gulbrandsen executed a waiver of process and consent to probate. She simultaneously executed a renunciation of nominated executrix and consent that letters testamentary issue to Laura Klinski.

There is now pending before this court a petition for probate filed by Laura Klinski, application for preliminary letters testamentary filed by Klinski, and a cross-petition for letters of administration c.t.a. and temporary letters of administration c.t.a. filed by Christine A. Basler, the decedent's daughter. Each of the applications estimate the approximate value of the decedent's gross testamentary estate as greater than $20,000.00, but less than $50,000.00. The cross-petition for letters of administration c.t.a. also identifies a possible action for wrongful death of the decedent against Sara Jane Gulbrandsen as a potential asset.

The daughter urges that preliminary letters testamentary should not issue to Laura Klinski for the reasons that she allegedly is the best friend of the wife, that she may be called as a witness on behalf of the wife regarding the death of the decedent, issues exist concerning Klinski's ability to distribute assets of the decedent to the wife because of a potential conflict of interest based upon their friendship, and finally, the daughter suggests that Klinski may be reluctant to commence a wrongful death action against the wife if and when the opportunity presents itself. On the foregoing basis, the daughter requests the court issue her temporary letters of administration c.t.a. Klinski opposes that application. She requests the court issue her preliminary letters testamentary.

The subject of preliminary letters testamentary is covered by SCPA §1412. The purpose [*2]of the cited statute is to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. (Matter of Mandelbaum, 7 Misc 3d 539, 541 [Sur. Ct., Nassau Cty. 2005].)

The potential conflict of interest alleged by the cross-petitioner is insufficient on the facts alleged to justify a finding that the petitioner is ineligible to receive letters. (Matter of Juelich, 81 AD2d 919 [2d Dept. 1981].) Actual misconduct, not a conflict of interest, justifies the denial of letters, as well as the removal of a fiduciary. (Matter of Shaw, 186 AD2d 809, 810 [2d Dept. 1992].) Here, the cross-petitioner has not offered facts in reliable form to sustain such a finding. In fact, the cross-petitioner has otherwise failed to demonstrate in probative form that the nominated alternate executrix is otherwise ineligible to serve based upon the criteria set forth in SCPA §707.

Accordingly, the petition for preliminary letters testamentary is granted. The cross-petition for temporary letters of administration c.t.a. is denied. The record reveals that the petitioner has qualified as provided in SCPA §708. Moreover, the petitioner is eligible to receive preliminary letters by virtue of SCPA §1412(3)(a) on the basis of her qualification and the fact that process has issued.

Paragraphs Eighth and Ninth of the propounded instrument afford the fiduciary plenary powers. However, this court is mindful of the unique circumstances which led to the creation of this estate. There are significant ramifications to the eventual distribution of the decedent's assets, whether individually owned, jointly owned or owned as tenant by the entirety, depending upon the outcome of the criminal proceedings pending against the wife. Therefore, limitations on the preliminary executrix should be imposed. (See Turano & Radigan, New York Estate Administration, 2006 edition at §3.10[b], pg. 142.) The preliminary executrix shall be limited to:

1.) marshaling and liquidating assets, 2.) disposing of securities, if any exist, 3.) paying the funeral bill, 4.) pay claims against the estate and otherwise apply to the court for its determination of the validity of a claim (Turano & Radigan, New York Estate Administration, 2006 edition supra, pg. 142.), and 5.) file the decedent's final state and federal income tax returns. (Rubenstein, LexisNexis AnswerGuide New York Surrogate's Court, 2006 edition, §3.20[5].)

There are no extraordinary circumstances present at this time which would require the preliminary executrix to file a bond. (SCPA §1412[5].) Therefore, letters may issue without bond.

On this application, the Court considered the petition for probate, waiver of process and consent to probate, renunciation of nominated executor, application for preliminary letters testamentary, cross-petition for letters of administration c.t.a. and temporary letters of administration c.t.a., affirmation, dated March 16, 2006, affirmation, dated March 22, 2006, affirmation, dated March 22, 2006, and reply affirmation, dated March 28, 2006.

Settle decree in accordance with the foregoing on notice within ten (10) days of the date of this decision.

The foregoing constitutes the decision of the Court. [*3]

Dated:Poughkeepsie, New York

April 5, 2006ENTER

Hon. James D. Pagones, S.C.J.

TO: