N.Y. Estates, Powers & Trusts Law Section 11-4.6
Leave to issue execution against personal representative

  • how

§ 11-4.6 Leave to issue execution against personal representative; how procured; order and contents thereof; security before order granted; execution on judgment recovered by predecessor representative (a) Leave to issue execution against personal representative. Except as provided in this paragraph, an execution shall not be issued upon a judgment for a sum of money against a personal representative, in his representative capacity, until an order permitting it to be issued has been made by the surrogate’s court from which letters were issued. Such an order must specify the sum to be collected, and the execution must be endorsed with a direction to collect that sum. If a judgment is rendered jointly against a personal representative in his representative capacity and one or more other parties, execution may be issued thereon, without such order, against the other party if a direction is endorsed thereon not to levy against any property which the personal representative is or may be entitled to possess in his representative capacity.

(b)

How leave procured; order; contents thereof. At least six days notice of the application for an order specified in paragraph (a) must be personally served upon the personal representative, unless it appears that service cannot be so made with due diligence, in which case notice must be given to such persons and in such manner as the surrogate directs by an order to show cause why the application should not be granted. Where it appears that the assets, after payment of all sums chargeable against them for expenses and for claims entitled to priority as against the plaintiff, are not, or will not be sufficient to pay all the debts, testamentary dispositions or other claims of the class to which the plaintiff’s claim belongs, the sum directed to be collected by the execution shall not exceed the plaintiff’s just proportion of the assets. In that case, one or more orders may be subsequently made in like manner, and one or more executions may be subsequently issued, whenever it appears that the sum directed to be collected by the first and subsequent execution is less than the plaintiff’s just proportion.

(c)

Security before grant of order. Where a judgment has been rendered against a personal representative in his representative capacity for a testamentary disposition or distributive share, the surrogate, before granting an order permitting an execution to be issued thereupon, may, and in a proper case must, require the applicant to file in his office a bond to the defendant, in such a sum and with such sureties as the surrogate directs, to the effect that if, after collection of any sum of money by virtue of the execution, the remaining assets are not sufficient to pay all sums for which the defendant is chargeable for expenses, claims entitled to priority as against the applicant, and the other testamentary dispositions or distributive shares of the class to which the applicant’s claim belongs, the plaintiff will refund to the defendant the sum so collected, or such ratable part thereof as is necessary to make up the deficiency.

(d)

Execution on former judgment. An execution may be issued in the name of a personal representative, in his representative capacity, upon a judgment recovered by any person who preceded him in the administration of the same estate, in any case where it might have been issued in favor of the original plaintiff, and without a substitution.

Source: Section 11-4.6 — Leave to issue execution against personal representative; how, https://www.­nysenate.­gov/legislation/laws/EPT/11-4.­6 (updated Sep. 22, 2014; accessed Jun. 15, 2024).

Accessed:
Jun. 15, 2024

Last modified:
Sep. 22, 2014

§ 11-4.6’s source at nysenate​.gov

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