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This entry was published on 2014-09-22
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SECTION 11-4.6
Leave to issue execution against personal representative; how
Estates, Powers & Trusts (EPT) CHAPTER 17-B, ARTICLE 11, PART 4
§ 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.