Full question:
my grandmother passed. My sister is the executor. She said my grandmother didn't leave me anything. I don't believe her as this is not what my grandmother told me. I wrote to the county court and no will has been filed. How can I get a copy of the will? She picked a big fight with me after the funeral when I asked her about the will, and refuses to speak with me now. I think I may need to hire a lawyer? Thank you.
- Category: Wills and Estates
- Subcategory: Executors and Administrators
- Date:
- State: New York
Answer:
When a person dies with a will, no official authority is given to the executor named until the will is probated.
The duty of settling and distributing the estate of a decedent (one who has died) is assigned to personal representatives of the decedent. A Personal Representative may be an executor (male or female) or executrix (female), or administrator (male or female) or administratrix (female). An executor or executrix is the person named in a will to administer the estate. An administrator or administratrix is a person appointed by the court to administer the estate of someone who died without a will.
Executors and administrators act as officers of the court because they derive their authority from court appointments. They are also considered the fiduciaries, or trusted representatives, of the deceased. As such, they have an absolute duty to properly administer the estate solely for its beneficiaries.
Probate is the process by which the court establishes that a will is valid. The first step in the probate process is to file the will in the appropriate court with a petition to admit it to probate and to grant letters testamentary to the person designated as executor of the will. Letters testamentary are the formal instruments of authority and appointment given to an executor by the probate court, empowering that person to act as an executor.
All siblings have the absolute right to see the Will. You may even be able to view it at the Probate or Surrogates Court when it is filed with the Court. If it has not yet been filed, you can force the filing by starting an action for an Administration of the Estate and by asking that you be granted the right to be named the Administrator. That will force them to produce the Will in Court and then you'll see who was named and everything else.
Although there is no deadline to file or probate a will in New York, it should be done as soon as possible. If the will is not filed within a reasonable time period and a party or a creditor will be disadvantaged as a result, the court will penalize the will holders and credit the disadvantaged party or creditor.
For specific advice on how to proceed with an action to force production of the will, please consult with a local experienced probate attorney.
An executor has a fiduciary duty in administering the distribution an estate. Breach of fiduciary duty issues includes the following:
Failing to exercise good trust management
Denying beneficiaries their inheritance for financial gain
Breaking the trust of the beneficiaries
Failing to act in good faith
Failing to manage an estate
If a fiduciary is found to have so breached their duties they can be held responsiblefor civil penalties and criminal charges. If you are a beneficiary of the estate and think there there has been such a breach, you need to send a letter in writing to the fiduciary explaining your concerns (send it certified mail, return receipt requested and keep a copy of the letter). If that fails to resolve the situation then you need to report their conduct to the appropriate Probate Court. If you believe that the assets were not properly distributed you could petition the court for an accounting
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
