New York: Preliminary Executor Has No Statutory Authority to Sell Specific Devise

New York law treats specific devises differently from residuary devises. We can see evidence of this difference in the statutory authority that a preliminary has over property under SPCA § 1412.

SCPA § 1412(3)(A) provides, in part (emphasis added):

§ 1412. Preliminary letters testamentary

. . .

3.(a) . . . Unless the court or the instrument offered for probate directs otherwise, a preliminary executor is also authorized to take possession of, manage and sell any real property devised by and any personal property specifically bequeathed by the instrument offered for probate and to allocate the expenses of managing such property in accordance with what is reasonable and equitable in view of the interests of those persons interested in such property and in the estate, except that any such property specifically devised or bequeathed may only be sold or otherwise disposed of with the written consent of the specific devisee or legatee or by court order. This authority shall not prevent the preliminary executor from permitting the devisee or legatee of such property to have possession of such property.

So, a preliminary executor can take possession of and manage property that is specifically devised but may not sell that property without either (1) the consent of the specific devisee or (2) a court order.

SCPA § 1412(3)(A) has the same rule for specific legacies.