Opinion
File No. 2023-408
08-22-2023
In the Matter of the Estate of Rosemarie Grassi Deceased.
Unpublished Opinion
Hon. David H. Guy, J.
Rosemarie Grassi died a resident of Broome County on January 23, 2023. A petition has been filed requesting probate of an instrument purporting to be her Last Will and Testament, dated March 3, 2005. Ms. Grassi was predeceased by her husband, Francis E. Grassi, and was survived by four sons, Francis Grassi, Christopher A. Grassi, Angelo F. Grassi and Martin R. Grassi. The petition was submitted by decedent's son, Francis Grassi, the nominated executor.
The offered Will leaves the decedent's estate equally to her four children, with the one-quarter share payable to her son Martin to be paid into a supplemental needs trust for his benefit, set forth in article Fifth of the Will. Martin is the subject of an Article 17-A Guardianship in this Court; his brother Angelo is the Guardian of his person and property. The offered Will nominates Martin's brother Francis trustee of the supplemental needs trust for the benefit of Martin.
The petition does not request letters testamentary be issued, only letters of trusteeship. The petition's supporting papers explain that there appear to be no probate assets, but one of the decedent's non-probate assets names the trust under article Fifth of this Will for the benefit of Martin Grassi as a beneficiary, so the Will needs to be probated and the Trust established to effectuate that non-probate distribution.
The petition also requests that instead of the letters of trusteeship being issued to Francis Grassi alone that they be issued to Francis and his brother Angelo Grassi, as co-trustees. All the relief requested in the petition is consented to, via waivers executed by the decedent's three sons not under a disability and by Angelo as Guardian of Martin.
While extremely rare, is it not unprecedented that a Will is offered for probate without the request of letters testamentary being issued. The fact pattern presented here is likely one of the most common examples. While probate is a predicate for the issuance of letters testamentary, letters testamentary do not necessarily follow from probate. The two processes are distinct. As noted in the statute," [a]fter a will has been admitted to probate any person entitled to letters thereunder who is eligible and who appears and qualifies is entitled to letters testamentary." SCPA §1414(1)(emphasis added). Though almost always contemporaneous, an application for letters testamentary is an independent proceeding following the decree of probate. In re Mayer, 84 Misc. 9 (Sur Ct, NY County 1914).
The Court otherwise being satisfied of the validity of the offered instrument, it will be admitted to probate, with no letters testamentary issued. SCPA §1408(2). If a probate asset requiring administration is later discovered, an application for letters testamentary may be made by the nominated executor, with no notice required to interested parties. In re Griffin's Estate, 193 Misc. 419 (Sur Ct, Erie County 1948).
Given that all the interested parties, including Angelo as Article 17-A Guardian for his brother Martin, have agreed on a co-trustee arrangement for Martin's Trust, the Court sees no reason not to grant the requested relief of appointing both Angelo and Francis as Co-Trustees of the Trust under article Fifth for the benefit of Martin. Christopher will remain as nominated alternate guardian in the event of a complete vacancy in the trustee position.
This Decision constitutes the Order of the Court. A decree consistent with it will be issued probating the offered Will and issuing letters of trusteeship only.