When Can a Beneficiary/Distributee for an Estate Compel an Executor to Initiate Probate in NYS?
<p>Soon after the death of their father in Queens, NY, two surviving sons, Brother X (who lived with their father) and Brother Y (living in NJ) find their father's will in his personal papers. The will indicates the estate is to be split 50/50. Brother X is indicates as a contingent executor but since their mother predeceased their father, Brother X is effectively the executor of the estate, which includes liquid assets in joint accounts set up by their father, his primary residence and a separate rental property in NY.</p>
<p>Two months have passed since their father passed away but Brother X has not filed a petition with surrogate court to initiate probate. Rent checks are received and home repairs are initiated by Brother X in the interim. If Brother X doesn't initiate a petition for probate, at what point can Brother Y approach the court to compel the start of probate?</p>

<p>Brother X isn't an executor until the surrogate's court appoints him to that post. Until then, he is just someone nominated in a Will to be an executor. The only power that a nominee might have is to stabilize estate assets pending an appointment, and not necessarily even that.</p>
<p>Brother Y, as second in line person to be executor, can apply to open a probate estate and be appointed as executor in a petition filed in the surrogates court for the county where the decedent was domiciled at the time of death. This will be granted as a matter of course, without an in person hearing if Brother X agrees in writing to waive the right to serve as executor.</p>
<p>If Brother X does not agree to waive the right to serve as executor in writing, then what happens is that Brother Y, upon filing a probate petition gives notice to Brother X of the hearing in the surrogate's court in which it is to decide if he will be appointed.</p>
<p>If Brother X doesn't make a timely objection to Brother Y's appointment as executor after Brother Y files a probate petition in surrogate's court and gives a timely notice, then the court will appoint Brother Y as Executor at the time appointed for the hearing (which may be vacated).</p>
<p>If Brother X objects in a timely fashion that he has priority over Brother Y, then he can say so, in which case, the estate will be opened and Brother X will be appointed as Executor unless the surrogate's court finds that Brother X is unfit to serve for some reason raised of its own accord or by an interested party in the probate case.</p>
<p>If the surrogate's court concludes that both Brother X and Brother Y are unfit to serve (e.g. they are both serving prison sentences for fraud at the time), the surrogate's court will instead appoint someone else to the position.</p>
<p>If there is no nominee in the will or relative or beneficiary available who the court finds to be fit to serve, the court will appoint a &quot;special administrator&quot; or &quot;public administrator&quot; to serve as executor (i.e. a third-party who is available to the court to be appointed in such cases).</p>

<h2>Never</h2>
<p>What Brother Y <em>can</em> do is apply to the court to have Brother X removed as executor <em>if</em> Brother Y can prove breach of <a href="https://en.wikipedia.org/wiki/Trustee" rel="nofollow noreferrer">trust</a>. Delay is not usually a breach of trust, unless we are talking years rather than months. The executor has wide discretion in the administration of the will.</p>
<p>If successful, Brother Y could then (or simultaneously) petition to have someone else appointed as executor.</p>

new-york-state probate executor