How Do I Force an Executor to Probate a Will in New York?

Full question:

My mother died in NYC almost 1 year ago, and my sister who also lives in NY has taken over all her property. She had the shares in my mother's coop transferred to her before my mother died to 'protect' her estate. We have been led to believer that as long as my mother remained in the property, and her will indicated how her property was to be divided that it is still our inheritance. However, I am not sure that she is acting in anyone's best interest. She refuses to turn matters over to the named execultor, nor will she submit the estate to probate/ I live in Massachusetts, and I am 72 years old. I would like to find someone in the Boston area who can help me, but I don;t know how to go about it. Thanks for your helpJudith Potts

• Category: Wills and Estates
• Subcategory: Probate
• Date: 04/07/2025
• State: Massachusetts

Answer:

When the court determines it is in the best interests of the estate, it may grant an accounting from the adminstrator of an estate after being petitioned by an interested party. Case law has found that a 6 year statute of limitations applies to an action to compel an accounting. Please see the attorney information at the following links:

http://lawyers.uslegal.com/wills-and-estates/massachusetts/
http://www.massbar.org/for-the-public/need-a-lawyer

The following are NY statutes:

§ 2205. Compulsory account and related relief on a court's own
initiative or on petition; who may petition
1. In the manner provided in this section and in section 2206, the
court may at any time, upon it appearing that it is for the best
interests of the estate, make an order (a) requiring a fiduciary to file
an intermediate or final account within such time and in such manner as
directed by it, (b) suspending a fiduciary who being duly cited to
account neglects to appear on the return of process without showing a
satisfactory excuse therefore, or who fails to file an account within
such time and in such manner as directed by the court, (c) appointing an
eligible person to succeed a fiduciary whose letters have been
suspended, (d) fixing a trial date for a hearing on the removal of a
fiduciary whose letters have been suspended, (e) fixing a trial date to
take and state an account on behalf of a fiduciary who fails to file
such account or procure its settlement, and (f) granting such other and
further relief as the court may direct.
2. The court may make an order as provided in subdivision one of this
section either on its own initiative or on the petition of:
(a) a creditor, or
(b) a person interested, or
(c) a public administrator or county treasurer, or
(d) any person in behalf of an infant or child born after the making
of the will when interested in the estate, or
(e) the fiduciary of a deceased person interested, or
(f) a surety on the bond of the fiduciary required to account, or
(g) a successor fiduciary or remaining fiduciary where letters of the
predecessor or co-fiduciary have been revoked or the predecessor or
co-fiduciary has been removed, or
(h) a co-fiduciary after he or she has filed his or her account and a
petition for its judicial settlement, or
(i) the attorney-general of the state where any part of the estate may
escheat to the state of New York

§ 11-4.1 How to sue or be sued
Actions or proceedings brought by or against a personal representative
must be brought by or against him in his representative capacity.

§ 11-4.7 Liability of the personal representative for claims arising out
of the administration of the estate
(a) Unless otherwise provided in the contract, a personal
representative is not individually liable on a contract properly entered
into in his fiduciary capacity in the course of administration of the
estate unless he fails to reveal his representative capacity and
identify the estate or trust in the contract.
(b) A personal representative is individually liable for obligations
arising from ownership or control of the estate or for torts committed
in the course of administration of the estate only if he failed to
exercise reasonable care, diligence and prudence.
(c) Claims based on contracts entered into by a personal
representative in his fiduciary capacity, on obligations arising from
ownership or control of the estate or on torts committed in the course
of estate administration may be asserted against the estate by
proceeding against the personal representative in his fiduciary
capacity, whether or not the personal representative is individually
liable therefor.
(d) In any case where liability is found against the estate as the
result of an action or proceeding brought under subdivision (c), issues
of liability as between the estate and the personal representative shall
be determined in an accounting proceeding brought pursuant to section
twenty-two hundred five of the surrogate's court procedure act.
(e)(1) For the purposes of this paragraph: (i) the term "act" shall
mean the federal air transportation safety and system stabilization act,
public law 107-42, as amended; (ii) the term "fund" shall mean the
September eleventh victim compensation fund of two thousand one
established pursuant to title IV of the act; and (iii) the term
"personal representative" shall have the same meaning as that term has
pursuant to section 104.4 of title twenty-eight of the code of federal
regulations.
(2) Notwithstanding any other provision of law to the contrary, any
person who serves as the personal representative of a victim of the
terrorist attacks on September eleventh, two thousand one, and who files
a claim with the fund, shall have no liability to any person resulting
from any actions taken reasonably and in good faith under the act,
including but not limited to: (i) the submission or prosecution of a
claim to the fund; (ii) a decision not to submit such a claim, or to
withdraw a claim previously submitted; (iii) the waiver pursuant to the
act of the right to file a civil action (or to be a party to an action)
in any federal or state court for damages sustained as a result of the
terrorist attacks; (iv) the failure to identify or locate any person
designated for receipt of notice under subdivision (b) of section 104.4
of title twenty-eight of the code of federal regulations, provided that
the personal representative made a reasonable and good faith effort to
identify and locate such person; or (v) the payment or distribution of
any award received from the fund in accordance with any plan of
distribution that has been submitted to and approved by the special
master appointed under the act.
(3) Notwithstanding any other provision of law to the contrary, or any
restrictions set forth in letters relating to any decedent who dies as a
result of wounds or injury incurred as a result of the terrorist attacks
on September eleventh, two thousand one, a duly appointed personal
representative is authorized to file and prosecute a claim with the
fund, and the filing of such a claim for an award from the fund, and the
resulting compromise of any cause of action pursuant to the act, shall
not violate any restriction on the powers granted to the personal

representative relating to the prosecution or compromise of any action,
the collection of any settlement, or the enforcement of any judgment.