Legal Question in Wills and Trusts in New York
Probate
My father died on 8/22/08. My uncle is the executor of the will and we've talked with him several times, and he says he wants to honor the position my parents asked of him. (mom died in '93). I have not spoken to him since November, as he will not return my phone calls. In calling my father's bank this week, due to a $50.00 late charge on his credit card, the woman I spoke with said that she has left phone messages to my uncle with no return call from him; she also sent correspondence via mail -- no response.
My sister lives in Florida in property that my father owns and I live in upstate NY . We would like to be co-executors. Can we draw up a document, mail it and have him sign off? What if he doesn't respond? I don't want to go to his home because because I don't want to be cajoled into letting him stay on as executor.
I appreciate any help you can give with this matter. And then where do I start with the probate process. Maria
3 Answers from Attorneys
Re: Probate
You can begin the Court process of having you and your sister appointed as executors instead of your uncle. This will either spur him into action, or get you and your sister the court authority to administer the estate.
Re: Probate
I think you are placing the cart before the horse.
A will identifies an individual that may be the executor, but that does not make the individual an executor. An individual becomes an executor after the will is probated and Letters Testamentary are issued. So, the probate process must first be started before an individual is appointed the executor.
Anyone of interest may petition the Surrogate's Court to probate the will. However, you would have to have the original will.
When you petition the Surrogate's Court to probate the will, you may also petition the Court for an alternate executor. You would have to make an argument that the Uncle cannot either physically or mentally carry out the requests of the decedent under the will.
As Mr. Park wrote, you should retain an attorney.
Mike.
Re: Probate
You will need to retain counsel In NY to protect your rights.
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