2023 New York Laws › EPT - Estates, Powers and Trusts › Article 11 - Fiduciary: Powers, Duties and Limitations; Actions by or Against in Representative or Individual Capacities › Part 4 - Procedural Aspects of Actions by or Against Personal Representatives › 11-4.6 - Leave to Issue Execution Against Personal Representative; How Procured; Order and Contents Thereof; Security Before Order Granted; Execution on Judgme

§ 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.