Legal Question in Wills and Trusts in New York
Can an executor assign responsibility to someone else?
My mom passed away last year, leaving her house to me, my brother & my sister equally. My sister lived with my mom while she was alive, and is still living there. Additionally, she collects rent from a tenant (it's a 2 family house in Canarsie (Brooklyn) of about $800 monthly that she uses for the household & her personal expenses. For various reasons, my sister is unwilling to move out. My brother is the executor according to the will, but said he wouldn't take any action against my sister. Isn't it the obligation of the executor to carry out the wishes of the will? Isn't my sister preventing my mother's wishes from being carried out? My mother made it very clear to all of us (verbally) that she felt 1 year was a reasonable amount of time for my sister to get herself out of the house so we could sell it. If my brother is willing to relinquish the role of executor, can I take that role? As executor would I be able to force her to move out? Is there a legal remedy here? It is becoming obvious, unfortunately, that she will not move out voluntarily, despite the fact that she would get 1/3 of approx. $350,000 (the value of the house). They both live in New York, as did my mom. I live in San Diego California. Thanks in advance.
3 Answers from Attorneys
Re: Can an executor assign responsibility to someone else?
An executor can hire an attorney to represent the estate but cannot delegate his authority to you.
If the executor is not representing the interests of the beneficiaries of the will adequately, he can be removed by the surrogate's court and an administrator c.t.a (with will attached) may be appointed. That could be you. You might start out with a formal request to the executor for an accounting of the estate's assets. This would include the rental income from the house which belongs to the heirs equally.
Is there a successor executor named in the will?
Alternatively, you might bring an action for partition and force a sale of the house.
Feel free to email me with any further questions.
Re: Can an executor assign responsibility to someone else?
Having read the other two responses, I am encouraged that you are receiving good legal advice from them.
I would like to add one suggestion; you can ask your sister to take out a mortgage anf use the money to pay to you your share of the value of the home. That might be best.
Re: Can an executor assign responsibility to someone else?
If probate has already closed and the title of the home in NY has been transferred to you and your siblings, as a part owner, you may force the sale of the house. This is called a partition lawsuit. An attorney in NY may be able to help you with this matter as the lawsuit should be filed where the property is located. If the sale of the house is ordered by the court, you will receive your share of the proceeds based on how you hold title with your siblings.
If probate has not closed and title has not transferred, there is not much you can do. But you can consult with the attorney handling the probate matter and see if he can advise you.
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