How can I legally obtain a copy of my beother's will if I was listed in it?
Full Question:
My brother passed away 2 weeks ago; my sister was left as the person to carry out his will. My other brother passed away 2 years ago, so it's only my sister and myself. My brother had three children, they haven't seen each other for over 20 years. Only the daughter started to come around recently. My sister and I met at my brothers apartment and she read me the will. I can not read nor write, but she did not offer to let us (my wife or myself) see the will. She said that he had 4 CD's and a lot of gold coins and jewelry and only 18 thousand dollars left in the bank. One CD was made in trust of me and the other one's were in trust of my sister. All his bills and funeral expenses were to be paid first, then he wanted one thousand dollars to go to each of his children and five thousand to a friend of his, then the remaining money, gold and contents of his apartment were to be sold, or divided between the two of us. When we met over there, she told us to pick out what furniture we wanted but first said what she wanted. So, the next day she calls and said one of his insurance policies was left to his ex-wife as beneficiary. So, we couldn't go and get anything in the apartment until she found out what was what. Meanwhile, she changed the lock on the door because my brother had given me a key long ago to his apartment. There was plenty of money to bury him along with the other insurance policy and one CD. We have not heard a word from her in over a week now and she is only about 10 miles away and in a local calling area. We want to know if we could legally get a copy of the will or what we can do to start cleaning out his apartment; rent will be due soon.
01/28/2009 |
Category: Wills and Estates |
State: New York |
#15089
Answer:
A will that has been submitted for probate is a public document and anyone can go to the court and obtain a copy. If you cannot go to the court yourself, you can hire a lawyer to obtain a copy for you. Under the New York Surrogates Court Procedures Act, a person with an interest in the estate may summon and examine a person believed to be hiding the will, or file a petition to have the will probated.
The executor named in the will will be granted authority by the court in the probate process to handle the decedent's affairs, such as paying debts owed and distributing their assets. It is the executor's responsibility to collect and distribute the property of the decedent and pay the decedent's creditors. The executor has a duty to act in a trustworthy and authorized manner in handling the estate of the decdent. If the executor acts outside the scope of his/her authority, in bad faith, or against the wishes of the decedent, the exectutor may be personally liable.
The following are NY statutes:
§ 1401. Proceeding to compel production of will
Whenever it shall appear to the court, sua sponte, or by the petition
of a person authorized under the succeeding section of this act to
present a petition for the probate of a will, that there is reasonable
ground to believe that any person has knowledge of the whereabouts or
destruction of a will of a decedent the court may make an order
requiring the person or persons named therein to attend and be examined
in the premises. Service of the order must be made by delivery of a
certified copy thereof to the person or persons named therein either
personally or in such manner as the court shall direct. The court may
either in the order or otherwise in the proceeding require the
production and filing in court of any will of the decedent which it
finds is in the possession or under the control of the respondent. The
court may impose the reasonable attorneys fees of the petitioner in such
a proceeding against a respondent when the court determines the
respondent did not have good cause to withhold production of such will
or codicil.
§ 1402. Who may propound will; contents of petition; direction of court
1. Who may petition. A petition for the probate of a will may be
presented by
(a) any person designated in the will as legatee, devisee, fiduciary
or guardian or by the guardian of an infant legatee or devisee or the
committee of an incompetent legatee or devisee, or the conservator of a
legatee or devisee who has been designated a conservatee pursuant to
article seventy-seven of the mental hygiene law;
(b) a creditor or any person interested or any person entitled to
letters of administration with the will annexed under 1418;
(c) any party to an action brought or about to be brought in which
action the decedent, if living, would be a party;
(d) the Public Administrator or County Treasurer on order of the
court, where a will has been filed in the court and proceedings for its
probate have not been instituted or diligently prosecuted.
2. Contents of petition. The petition for probate shall allege the
citizenship of the petitioner and the testator and shall describe the
will being offered for probate and any other will of the same testator
on file in the court and shall set forth the names and post-office
addresses so far as they can be ascertained with due diligence of all of
the persons required to be cited and all of the legatees, devisees and
fiduciaries named in the will or any other will so filed.
3. Direction of court.
(a) Where a petition for probate has been filed and the proceeding has
not been diligently prosecuted the court may direct the Public
Administrator or County Treasurer or authorize any party to take such
steps as may be required to bring the proceeding to a decree.
(b) Where necessary, the court shall determine the text or tenor of
the will as admitted to probate and may incorporate the will or any part
thereof in the decree.
