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PROBATE PROCEEDINGS; CONSTRUCTION OF WILLS; RIGHT OF ELECTION
Section 1401. Proceeding to compel production of will. 1402. Who may propound will; contents of petition; direction of court. 1403. Persons to be served; content of process. 1404. Witnesses to be examined; proof required. 1405. When court may dispense with testimony of witness. 1406. Proof of will by affidavit of attesting witness out of court. 1407. Proof of lost or destroyed will. 1408. Probate not allowed unless court satisfied. 1409. Notice of probate. 1410. Who may file objections to probate of an alleged will. 1411. Citation upon filing of objections. 1412. Preliminary letters testamentary. 1413. Revocation of letters upon proof of will. 1414. When letters testamentary may be issued. 1415. Supplementary letters; executors not named in letters not to act. 1416. Executor failing to qualify or renounce; how excluded. 1417. Renunciation by nominated executor; retraction thereof. 1418. Letters of administration with will annexed; when and to whom granted. 1419. Process; renunciation or exclusion of persons having prior or equal right. 1420. Proceeding for construction of will; effect of decree. 1421. Election of surviving spouse. 1422. Record of wills; evidence. 1423. Record of wills in former court of probate; evidence. 1424. Foreign wills; evidence after lapse of time. S 1401. Proceeding to compel production of will Whenever it shall appear to the court, sua sponte, or by the petition of a person authorized under the succeeding section of this act to present a petition for the probate of a will, that there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a will of a decedent the court may make an order requiring the person or persons named therein to attend and be examined in the premises. Service of the order must be made by delivery of a certified copy thereof to the person or persons named therein either personally or in such manner as the court shall direct. The court may either in the order or otherwise in the proceeding require the production and filing in court of any will of the decedent which it finds is in the possession or under the control of the respondent. The court may impose the reasonable attorneys fees of the petitioner in such a proceeding against a respondent when the court determines the respondent did not have good cause to withhold production of such will or codicil. S 1402. Who may propound will; contents of petition; direction of court 1. Who may petition. A petition for the probate of a will may be presented by (a) any person designated in the will as legatee, devisee, fiduciary or guardian or by the guardian of an infant legatee or devisee or the committee of an incompetent legatee or devisee, or the conservator of a legatee or devisee who has been designated a conservatee pursuant to article seventy-seven of the mental hygiene law; (b) a creditor or any person interested or any person entitled to letters of administration with the will annexed under 1418; (c) any party to an action brought or about to be brought in which action the decedent, if living, would be a party; (d) the Public Administrator or County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted. 2. Contents of petition. The petition for probate shall allege the citizenship of the petitioner and the testator and shall describe the will being offered for probate and any other will of the same testator on file in the court and shall set forth the names and post-office addresses so far as they can be ascertained with due diligence of all of the persons required to be cited and all of the legatees, devisees and fiduciaries named in the will or any other will so filed. 3. Direction of court. (a) Where a petition for probate has been filed and the proceeding has not been diligently prosecuted the court may direct the Public Administrator or County Treasurer or authorize any party to take such steps as may be required to bring the proceeding to a decree. (b) Where necessary, the court shall determine the text or tenor of the will as admitted to probate and may incorporate the will or any part thereof in the decree. S 1403. Persons to be served; content of process 1. In a proceeding for the probate of a will process must issue to the following persons if not petitioners: (a) The distributees of the testator. (b) The person or persons designated in the will as executor except that a person designated in the will as substitute or successor executor in the event the designated executor cannot act or fails to qualify need not be served where the designated executor is under no disability. (c) Any person designated in the will as beneficiary, executor, trustee or guardian, whose rights or interests are adversely affected by any other instrument offered for probate that is later in date of execution or which amends or modifies an instrument offered for probate. (d) Any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate`s court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate. (e) If the propounded will expressly refers to an instrument which created a power of appointment and purports to exercise such power of appointment, any persons designated in the instrument that created such power of appointment whose rights or interests are adversely affected by the instrument offered for probate. (f) The testator in any case where the petition alleges that the testator is believed to be dead. (g) The state tax commission in the case of a non-domiciliary testator. (h) Where any person to whom process is required to be issued has died, process shall issue to his fiduciary and if none has been appointed, to all persons interested as distributees, nominated fiduciaries or named as legatees or devisees under any will of the deceased filed in the court. (i) The provisions of section three hundred fifteen shall apply to a proceeding under this section. 2. The process must set forth the name of the proponent and if the will is nuncupative, that fact. S 1404. Witnesses to be examined; proof required 1. Except as otherwise provided in this article, 2 at least, of the attesting witnesses must be produced before the court and examined before a written will is admitted to probate if so many of the witnesses are within the state and competent and able to testify. 2. Where the will offered for probate is on file in a court or public office under the laws of which jurisdiction the will cannot be removed the court may issue a commission to a person authorized to take a commission under CPLR 3113 or to an attorney and counsellor-at-law of the state or of the jurisdiction in which the commission is to be taken, to take the testimony and may admit the will to probate upon proof of its provisions, of its existence at the time of the death of the testator and of its due execution. Where the will offered for probate is brought to the surrogate`s court by a representative of a public office of another jurisdiction, the court may take proof of the will and permit the representative to return the will to such other jurisdiction. The decree admitting the will to probate shall set forth the full text of the will. The proof so taken and the decree admitting the will to probate shall have the same force and effect as though the will had been filed or had remained in the court. 3. Before a nuncupative will executed under the provisions of EPTL 3-2.2 is admitted to probate its execution and the tenor thereof must be proved by at least two witnesses. Before a holographic will made under the provisions of that section is admitted to probate its execution and the handwriting of the testator must be proved. 4. In all cases the proofs must be reduced to writing. Any party to the proceeding, before or after filing objections to the probate of the will, may examine any or all of the attesting witnesses, the person who prepared the will, and if the will contains a provision designed to prevent a disposition or distribution from taking effect in case the will, or any part thereof, is contested, the nominated executors in the will and the proponents. No person who has been examined as a witness under this section shall be examined in the same proceeding under any other provision of law except by direction of the court. The attesting witnesses, the person who prepared the will, the nominated executors in the will and the proponents may be examined as to all relevant matters which may be the basis of objections to the probate of the propounded instrument. There shall be made available to the party conducting such examination, all rights granted under article 31 of the civil practice law and rules with respect to document discovery. 5. Unless the court directs otherwise for good cause shown, the costs of the examinations conducted pursuant to subdivision 4 of this section shall be paid as follows: (a) In the case of examinations conducted before objections are filed, the testator`s estate shall pay the costs of: (1) the initial production or commission and the examination of (A) the first two attesting witnesses within the state who are competent and able to testify who are produced by the proponent, or (B) if no witness is within the state and competent and able to testify, the witness without the state who resides closest to the county in which the probate proceedings are pending and who is competent and able to testify; and (2) the stenographer and one copy of the transcripts of such examinations for the court and any guardians ad litem. The costs of all other examinations, including subsequent examinations of the witnesses described in subparagraph (1) of this paragraph, shall be governed by article 31 of the civil practice law and rules. (b) In the case of examinations conducted after objections are filed, all costs of such examinations shall be governed by article 31 of the civil practice law and rules. (c) All costs of document discovery in connection with such examinations shall be governed by article 31 of the civil practice law and rules. 6. Unless the court directs otherwise for good cause shown, if more than one person shall have been involved in the preparation of the will, the term "person who prepared the will" shall mean the person so involved to whom the testator`s instructions for preparing the will were communicated by the testator. S 1405. When court may dispense with testimony of witness 1. The death, absence from the state or incompetency of an attesting witness required to be examined as prescribed in this or the preceding section or the fact that the witness cannot with due diligence be found within the state or cannot be examined as an attesting witness by reason of his physical or mental condition may be shown by affidavit or by any competent evidence and when so shown to its satisfaction, the court may by the decree on probate or by order either in writing or entered in the minutes dispense with the testimony of such attesting witness. Where the testimony of an attesting witness has been dispensed with as provided in this section and 1 attesting witness has been examined the will may be admitted to probate upon the testimony of the attesting witness who has been examined without further or additional proof. 2. Where an attesting witness is absent from the state and it is shown that his testimony can be obtained with reasonable diligence the court may and shall upon the demand of any party require his testimony be taken by commission. 3. Where an attesting witness has forgotten the occurrence or testifies against the execution of the will and at least 1 other attesting witness has been examined the will may be admitted to probate upon the testimony of the other witness or witnesses and such other facts as would be sufficient to prove the will. 4. If all of the attesting witnesses are dead or incompetent or unable to testify by reason of physical or mental condition or are absent from the state and their testimony has been dispensed with as provided in this section the will may nevertheless be admitted to probate upon proof of the handwriting of the testator and of at least one of the attesting witnesses and such other facts as would be sufficient to prove the will. S 1406. Proof of will by affidavit of attesting witness out of court 1. In addition to other procedures prescribed for the proof of wills, any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor named in the will or of the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint. The sworn statement of a witness so taken shall be accepted by the court as though it had been taken before the court, unless: (a) a party entitled to process in the proceeding raises objection thereto or (b) for any other reason the court may require that the witness or witnesses be produced and examined. 2. For the purposes of making the affidavit referred to in this section, after the death of the testator, the exhibition to the witnesses of a court-certified photographic reproduction of the will shall be deemed equivalent to the exhibition to them of the original will. S 1407. Proof of lost or destroyed will A lost or destroyed will may be admitted to probate only if 1. It is established that the will has not been revoked, and 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete. S 1408. Probate not allowed unless court satisfied 1. Before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution. The court may, however, accept an affidavit of an attesting witness in the manner and under the circumstances prescribed in this article. 2. If it appears that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate as a will valid to pass real and personal property, unless otherwise provided by the decree and the will and decree shall be recorded. 3. Where the petition alleges that the testator has disappeared under circumstances sufficient to justify the belief he is dead the court shall take proof of the facts. If it appears that the testator is dead the court may make a decree determining such fact and admitting the will to probate. The decree shall be binding in its effect upon the interests in the estate of persons under disability and of future contingent interests of persons not in being as well as the interests of adult competent persons. S 1409. Notice of probate 1. Before letters are issued there shall be filed in the court a notice entitled in the proceeding stating the name of the testator, the name and address of the proponent, and that the will of the testator has been offered for probate or probated, as the case may be. The notice shall further set forth the name and post-office address of each person named or referred to in the petition who has not been served or has not appeared or waived service of process and shall state whether such person is named or referred to in the will as legatee, devisee, trustee, guardian or substitute or successor executor, trustee or guardian. The notice shall further set forth the name and post-office address of the attorney general of the state of New York if the will that has been offered for probate contains a charitable bequest which is either to an unnamed charitable organization or is in an unspecified amount, including but not limited to, a bequest of all or part of the residuary estate. (a) Where by the terms of the will an interest in a trust or other fund or property has been limited in any contingency to the persons who shall compose a certain class upon the happening of a future event it shall be sufficient to name only the persons in being at the death of the decedent who would constitute the class if such event had happened immediately before the date of such notice, and who have not been served or appeared or waived service of process. (b) Where by the terms of the will an interest in a trust or other fund or property has been limited to a person who is named in such notice or who has been served or has appeared or waived notice of process, and has been further limited upon the happening of a future event to a class of persons described in terms of their relationship to such person it shall not be necessary to name such class of persons. 2. There shall be filed with the notice proof by affidavit of the mailing of a copy thereof to each of the persons required by the preceding subdivision to be named in such notice, and if any person is an infant or an incompetent, of the mailing of a copy thereof to the person or persons upon whom personal service of process is required to be made with respect to the infant or incompetent. When it appears by the petition for probate that the name or address of any person referred to in this section is unknown mailing to such person of the notice herein described shall not be required. S 1410. Who may file objections to probate of an alleged will Any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof except that one whose only financial interest would be in the commissions to which he would have been entitled if his appointment as fiduciary were not revoked by a later instrument shall not be entitled to file objections to the probate of such instrument unless authorized by the court for good cause shown. The objections must be filed on or before the return day of the process or on such subsequent day as directed by the court; provided however that if an examination is requested pursuant to 1404, objections must be filed within 10 days after the completion of such examinations, or within such other time as is fixed by stipulation of the parties or by the court. S 1411. Citation upon filing of objections 1. Whenever objections are filed to the probate of a will, the proponent shall submit to the court for issuance a citation returnable at a motion term of the court (a) reciting that objections have been filed to the will offered for probate and that such objections may be determined at a trial or at a hearing or conference on the return date or on a date to be fixed by the court, and (b) reciting the consequences of failing to appear set forth in the provisions of subdivision six of this section. 2. The citation shall be submitted by the proponent to the court within thirty days after the filing of objections. If the proponent fails to submit the citation, the citation may be submitted by an objectant or any other interested person. 3. The citation shall be issued to (a) each person named or referred to in the propounded instrument who has not appeared in the proceeding and whose interests would be affected by the outcome of the proceeding, and (b) such other persons as directed by the court. 4. The citation shall be served in accordance with the requirements of sections 307 and 308, except that service may be made by mail as therein provided upon any person whether or not a resident of this state. Proof of the service of the citation shall be made and filed in the court at least two days before the return date of the citation. 5. Each person to whom the citation must be issued, as provided in subdivision three of this section, may waive service of the citation. Each person who has waived or has been served under this section may appear personally or by filing a notice of appearance. 6. Any person who has waived or has been served under this section and who does not appear will not be entitled to further notice, and each objection filed may be determined at a trial or at a hearing or conference on the return date or on a date to be fixed by the court. If a settlement is entered into and agreed to by all parties appearing at the trial, hearing or conference, such settlement and any final determination by the court will be binding on all persons who have waived or have been served with process and who have failed to appear. Any person so failing to appear may be required to contribute to such settlement an amount which bears the same proportion to the total amount of the settlement as his or her interest in the estate bears to the aggregate of the interests in the estate of all persons required to contribute to the settlement.
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Introduction to Wills
Introduction to Trusts
S 1412. Preliminary letters testamentary 1. Whenever a petition for probate of a will (other than a lost or destroyed will) has been filed and process has issued thereon, an executor named in the will may file with the court a written request for the issuance to him of preliminary letters testamentary. In its discretion the court may accept a written request for such letters prior to the issuance of process upon such proof as the court shall deem necessary. Where the request is made by one of several nominated executors, notice shall be given to all persons who under the terms of the will have a right to letters testamentary equal to that of the petitioner. Where there is another will of the same testator on file in the court that is later in date than the propounded instrument, notice shall be given to all persons who under the terms of the later will would have the right to letters testamentary immediately upon probate of such later will. 2. (a) Notice hereunder shall be given at the time and in the manner directed by the court and may be given either before or after issuance of preliminary letters. Any person having a right to letters testamentary equal to that of an applicant for preliminary letters testamentary may join in the application for such letters and may request that they issue to him or after the issue of such letters may request that the letters heretofore issued be extended to him. A person named in the will to act as executor upon the occurrence of any contingency may in like manner request issuance of such letters, provided that the contingency has occurred which would entitle him to be appointed executor. A person named as executor in a will later in date than that in which the first applicant is appointed may file a written cross-request for preliminary letters testamentary after he has filed a petition for probate of such later will and process has been issued thereon. Unless, for good cause shown, the court shall otherwise direct, the person named as executor in the latest such will shall have a prior right to preliminary letters testamentary. (b) When preliminary letters testamentary have been issued and thereafter a will later in date has been filed with a petition for its probate, and process has been issued thereon, an executor named in the later will may request the revocation of the prior letters and the issuance of preliminary letters to him, and upon such notice as the court may direct, the court shall have discretion to revoke the letters theretofore issued and grant preliminary letters testamentary to the executor named in the later will, to grant preliminary letters testamentary jointly to the executors named in both wills, to confirm the grant of letters theretofore issued, or to take such other action as the court deems to be for the best interests of the estate and of the persons interested therein. 3. (a) Upon due qualification as provided in subdivision 5 and upon the issuance of process, and whether before or after the return day of said process, preliminary letters testamentary must thereupon be issued to the person or persons who appear to the court to be entitled thereto, and where the court has accepted a request for such letters prior to the issuance of process, preliminary letters testamentary may be issued in the discretion of the court upon due qualification as provided in subdivision 5. The letters shall confer upon the person named therein, subject to any limitations contained in the instrument offered for probate, all the powers and authority and shall subject him to all the duties and liabilities of an administrator except that they do not confer any power to pay or to satisfy a legacy or distributive share. 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. (b) A preliminary executor shall give notice to all parties who have appeared of his or her appointment within ten days of such appointment. 4. (a) The court may in the order directing the issuance of preliminary letters testamentary or in one or more subsequent orders limit preliminary letters testamentary to the receipt of assets specified in such order or orders and may prohibit the collection of any other assets of the decedent, or may limit or authorize the person named in such letters in any manner that the court deems advisable for the effective protection of the rights of all persons who may have an interest in the estate of the decedent. (b) In such order or orders, the court may make such directions as it deems proper and necessary with respect to the custody and preservation of all papers and records of the decedent. Discovery and production of such papers and records shall be governed by article thirty-one of the civil practice law and rules. 5. Before preliminary letters testamentary are issued to a named executor he shall qualify as provided in 708. If the will offered for probate shall require the filing of a bond by the executor the person requesting preliminary letters testamentary must file his bond in accordance with the requirements of the will. In addition the court shall have full and complete discretion to require him to file such additional bond as it deems advisable under the circumstances of the particular case. Where the will is silent in respect of the filing of a bond or where it explicitly dispenses with the filing of a bond the court shall nevertheless have full and complete discretion at any time and from time to time to require the person seeking such letters to file a bond in such amount as the court deems advisable under the circumstances of the particular case or it may grant such letters without bond. Where the will explicitly dispenses with the filing of a bond, the court shall grant such letters without bond, unless it determines there are extraordinary circumstances in the particular case to warrant filing of a bond, in which case the court shall have discretion to require the person seeking such letters to file a bond in such amount as the court deems advisable. 6. A decree denying probate to a propounded instrument shall revoke any preliminary letters testamentary issued upon such instrument unless the court shall direct that such letters continue until the termination of any appeal and in such case the court may make such limitations, restrictions or conditions on such letters as justice may require. The court may revoke preliminary letters testamentary at any time (a) if it shall appear that the preliminary executor is guilty of unreasonable delay in the probate proceeding or (b) for any cause that would justify the revocation of letters under 719 or (c) for any other reason deemed by the court to be in the best interests of the estate. 7. A preliminary executor shall not be entitled to the commissions provided for a fiduciary in this act unless the will be admitted to probate and letters testamentary are issued to him, in which event he shall be entitled to commissions as provided in this act for a case where successive letters are issued to the same person on the estate of the same decedent. If the will be denied probate or his letters are revoked for any reason during the pendency of the probate proceeding he shall be entitled for such service to receive only such compensation, if any, as the court shall determine to be reasonable and just for the services rendered by him to the estate, not to exceed the commissions to which an executor would be entitled. For purpose of the fixation of such commissions or compensation any real property or specifically devised personal property of which a preliminary executor took possession and then distributed or otherwise disposed of shall be treated as property received, distributed or delivered. S 1413. Revocation of letters upon proof of will Where temporary letters of administration, preliminary letters testamentary or letters of administration on the ground of intestacy have been granted and a will is thereafter admitted to probate and letters issued thereupon or where a subsequent will is admitted to probate and letters issued thereupon, the decree granting probate must revoke the former letters. S 1414. When letters testamentary may be issued 1. After 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. 2. Where a judgment has been rendered in an action establishing a will the surrogate must record the will and issue letters as directed by the judgment. 3. A person entitled to letters upon a contingency may appear and show that the contingency has happened by which he is entitled to such letters. 4. A person named as an executor by a person other than the testator under a valid power contained in a will must appear and file an acknowledged selection of himself as an executor. S 1415. Supplementary letters, executors not named in letters not to act If the disability of an infant or an alien named as an executor in a will be removed before the administration of the estate is completed he shall be entitled on petition showing the facts to supplementary letters testamentary to be issued in the same manner as the original letters to join in the completion of the administration of the estate with the person or persons previously appointed. A person named in a will as executor shall be deemed to be superseded by the issue to another person of letters testamentary and shall have no power or authority as executor until he appears and qualifies and letters testamentary are issued to him. S 1416. Executor failing to qualify or renounce; how excluded 1. Upon the application of a fiduciary, a person interested or a creditor, the court shall direct an executor named in a will to qualify within a time specified by the court or in default of so doing to be deemed to have renounced the appointment in any case where (a) a person named as executor in a will does not qualify or renounce within 15 days after probate thereof or (b) a person chosen by virtue of a power in a will does not qualify or renounce within 15 days after the filing of the instrument designating him or (c) objections are filed to the grant of letters to a person named as executor in a will or chosen by virtue of a power therein contained and such person does not qualify or renounce within 5 days after the objections have been determined in his favor or, in a case specified in 710, within 5 days after an objection to letters has been established. 2. Where it appears by affidavit or other written proof to the satisfaction of the court that such an order cannot with due diligence be served personally within the state upon the person therein named the court may prescribe the manner in which it must be served. 3. If the person so designated executor does not qualify within the time fixed or within such further time as the court may allow for that purpose an order shall be made declaring that he has renounced his appointment as executor. Such an order may be revoked by the court and letters testamentary issued to the person so failing to renounce or qualify upon his application in a case where he might have retracted an express renunciation as prescribed in the succeeding section. S 1417. Renunciation by nominated executor; retraction thereof 1. A person named as executor in a will may renounce his right to letters testamentary by an acknowledged instrument. 2. A renunciation may be retracted by an instrument executed in like manner as required for the execution of a renunciation at any time before letters testamentary or letters of administration with will annexed have been issued to any other person in his place or after they have been so issued, if such letters have been revoked or the person to whom they were issued has died or become an incompetent and there is no other acting executor or administrator. 3. Where a retraction is so made letters testamentary may be issued to the person making it upon such notice as directed by the court. 4. An instrument specified in this section must be filed in the court having jurisdiction over the estate. S 1418. Letters of administration with will annexed; when and to whom granted 1. If no person is named as executor in the will or selected by virtue of a power contained therein or if at any time there is no executor or administrator with will annexed qualified to act, upon the application of any person who may petition for the probate of the will under 1402 the court must issue letters of administration with will annexed in the following order of priority: (a) to a sole beneficiary or if he be dead to his fiduciary; (b) to one or more of the residuary beneficiaries or, if any be dead, to his fiduciary; (c) if there is no eligible person entitled to letters under subparagraphs (a) and (b) of this subdivision who will accept, the court may issue letters to 1 or more of the persons interested in the estate or, if any be dead, to his fiduciary. 2. If there is no eligible person entitled to letters under the foregoing subdivision who will accept or an appointment is not made by consent as provided in subdivision 6, letters shall issue to the public administrator or, if there be none for the county, to the treasurer of the county. 3. If none of the persons mentioned in subdivisions 1 and 2 will accept letters the court may issue them to the petitioner or upon petitioner`s refusal to accept the same to any person designated by the court. 4. A corporation incorporated within the territorial limits of the United States which is a sole or residuary legatee may act as administrator with will annexed although not specifically so authorized by its charter or by any provision of law. 5. If any person otherwise entitled to letters under subdivision 1 is an infant, incompetent or conservatee the court may issue letters with will annexed to the guardian of the property of the infant, the committee of the property of the incompetent, or the conservator of the property of the conservatee with the same priority as if the infant, incompetent or conservatee had himself been eligible to take letters. 6. Administration may be granted to an eligible person or persons not entitled as beneficiaries upon the acknowledged and filed consent of all of the beneficiaries, provided all the beneficiaries are themselves eligible. The guardian of the property of an infant beneficiary, the committee of the property of an incompetent beneficiary or the conservator of the property of a conservatee beneficiary may so consent. 7. Administration may be granted to a trust company or other corporation authorized to act as fiduciary upon the acknowledged and filed consents of all the beneficiaries inclusive of those who may be non-domiciliary aliens, provided that all such beneficiaries are otherwise eligible. The guardian of the property of an infant beneficiary, the committee of the property of an incompetent beneficiary, or the conservator of the property of a conservatee beneficiary appointed within the state, may so consent. 8. The court may refuse to issue letters of administration with will annexed where distribution of the estate is possible pursuant to the provisions of this act. S 1419. Process; renunciation or exclusion of persons having prior or equal right Every eligible person having a right to letters of administration with the will annexed prior or equal to that of the petitioner including an infant, incompetent or conservatee whose guardian, committee or conservator would be entitled to letters, and who has not renounced, must be served. The proceedings upon the application are the same as upon an application for administration upon the estate of an intestate. The court may dispense with the issuance and service of process upon non-domiciliaries. S 1420. Proceeding for construction of will; effect of decree 1. A fiduciary or a person interested in obtaining a determination as to the validity, construction or effect of any provision of a will may present to the court in which the will was probated a petition showing the interest of the petitioner, the names and post-office addresses of the other persons interested, the particular portion of the will concerning which petitioner requests the determination of the court and the necessity for construction. If the application be entertained process shall issue to all persons interested in the question to be presented to show cause why the determination should not be made. On the return of process the court shall take such proof and shall make such decree as justice requires. 2. If in any proceeding for the judicial settlement of an account of a fiduciary any question is presented by any party to the proceeding respecting the propriety of any debit or credit in the account, the determination of which involves the validity, construction or effect of any portion of the will which requires such construction the presentation of the question shall have the same effect as if the petition had expressly requested a construction of the particular portion of the will involved in such determination. 3. If a party in a proceeding for the probate of a will requests a determination of the validity, construction or effect of any provision contained in the will process shall issue to all persons interested in the determination who have not appeared in the proceeding and notice shall be given in such manner as directed by the court to all those persons who have so appeared therein. Upon the entry of a decree admitting the will to probate the court may determine the question of construction or in its discretion may admit the will to probate and reserve the question for future consideration and decree. 4. A decree in any proceeding authorized in this section or a decree settling an account of a fiduciary or a decree on probate which construes or interprets any portion of a will, unless reversed or modified on appeal, shall thereafter be binding and conclusive in all courts upon all parties to the proceeding and upon their successors in interest as to all questions of construction or interpretation of the will therein or thereby determined and of all rights and obligations of the parties involved in the construction, depending thereon, or resulting therefrom. 5. The provisions of section three hundred fifteen shall apply to a proceeding under this section. S 1421. Election by surviving spouse 1. Any person interested in obtaining a determination as to the validity or effect of an election to take a share under EPTL 5-1.1 or EPTL 5-1.1-A may present to the court in which the will was probated or from which letters of administration were issued, a petition showing his interest, the names and post-office addresses of the other persons interested and the particular question concerning which he requests the determination of the court. 2. If the application be entertained process shall issue to all persons interested in the question to be presented to show cause why the determination should not be made. On the return of process the court may take proof and shall make such decree as justice requires. 3. The validity or effect of any such election may also be determined in a proceeding for the judicial settlement of the accounts of a fiduciary. 4. For the purpose of determining the validity or effect of any election made pursuant to EPTL 5-1.1 or EPTL 5-1.1-A, either under this section or in a proceeding for the judicial settlement of the accounts of the fiduciary, a person interested shall include any person who has an interest in any of the transactions described in EPTL 5-1.1 or EPTL 5-1.1-A. Where any such person has an interest as trustee of an express trust it shall be sufficient to name and serve the trustee. 5. Whenever it shall appear that a fund or property required to be included in the net estate under EPTL 5-1.1 or EPTL 5-1.1-A has not come into the possession of the fiduciary of the decedent as such, the court shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. S 1422. Record of wills; evidence A certified copy of the record of the decree admitting a will to probate and of the record of the will so admitted to probate shall be received in evidence in any court in any action or proceeding with the same force and effect as if the original will had been produced and proved in such action or proceeding. The recording of a will in the court shall be evidence that it was duly admitted to probate. S 1423. Record of wills in former courts of probate; evidence The exemplification of the record of a will proved before the judge of the former court of probate and recorded in his office before January 1, 1785, certified under the seal of the officer having custody of the record, shall be admitted in evidence in any case after it has been made to appear that diligent and fruitless search has been made for the original will. S 1424. Foreign wills; evidence after lapse of time The exemplification of the record of a will which has been duly proved before a court or officer of competent jurisdiction in any other state, shall, when certified by the officer having by law custody of the record at the time the certificate was made, be admitted in evidence as if the original will was produced and proved when 20 years have elapsed since the will was so proved.