{Read in 3 Minutes} As a Trusts and Estates attorney, I frequently file petitions in the Surrogate’s Court after someone dies. This may involve offering a Will to probate or having an Administrator of the Estate appointed when someone dies without a Will. These petitions generally move pretty quickly through the Court. However, they are certainly not granted instantaneously.
Sometimes there is immediate need for relief, either prior to, or simultaneous with the appointment of a fiduciary of the Estate or after the Executor/Administrator gets appointed. For example, maybe the deceased owned real property and somebody filed a fraudulent deed with the city transferring the property into their name. That person is now trying to sell the property under their name. The fiduciary of the Estate should consider asking the Court for a temporary restraining order preventing the sale of the property until the Court rules on the validity of the deed, because once sold, the property or the cash proceeds may never be coming back. Or what if the Executor is trying to sell the property to themselves for a fraction of its actual value? Here, a temporary restraining order is the preferred device to protect the Estate.
What is a temporary restraining order? Well, you may be familiar with it from Family Court or criminal proceedings in the context of stay away or no contact orders. For example, maybe someone has been the victim of a crime or the victim of domestic violence, and the Court will order one person to stay away from another.
In the Surrogate’s Court, it’s a bit different. It calls the Court’s attention to something that needs urgent and immediate attention to prevent the Estate from suffering irreparable harm. The examples I’ve given are both such a case. The Court can issue an immediate order preventing someone from doing something and set a hearing date in the very near future to hear the merits of the argument. For example, maybe what the petitioner is alleging isn’t true and the transaction in question was entirely proper. There, the Court can protect the property until it holds a hearing and makes a ruling on it, thereby protecting everyone’s interests.
If you are an Executor/Administrator of an Estate and you see an emergency come up, it’s probably worth it to contact a lawyer pretty quickly, because you want to get these applications for temporary restraining orders before the Court as soon as possible. That attorney probably also wants to contact the clerks of the court to let them know that they are filing emergency papers so that they can be processed and put before the judge for consideration very, very quickly. For more information on this topic, please contact me.