Suing a Sibling Over an Estate in New York: Remedies, Process, and What to Expect

If you are considering taking a brother or sister to court over a parent's estate in New York, this guide explains the actual legal remedies available, where each one is filed, the steps you should expect, and realistic timelines and costs. It is meant as a starting point so you can identify which proceeding fits your situation and what the litigation will realistically involve.

For a confidential consultation about a New York estate dispute, you can email us at [email protected] or call 212-233-1233.

First, identify the actual dispute

"Suing a sibling" is not a single legal action — it is shorthand for several distinct New York proceedings, each with its own purpose, statute, and forum. The correct remedy depends on what your brother is actually doing:

• He is hiding or has taken estate money or property. You may need a discovery and turnover proceeding under SCPA 2103 and 2104. See our page on a brother who took and is hiding a father's money and on the discovery and turnover proceeding.
• He is living in the inherited home and won't pay or leave. Co-owners can force a sale through a partition action, or an estate fiduciary may seek to recover possession or use and occupancy. See brother living rent-free in the inherited house, brother who refuses to leave a deceased parent's house, and our partition attorney page.
• He is the executor or administrator and is mismanaging the estate. You can compel an accounting and seek to remove him as a fiduciary under SCPA 711 and 719.
• You believe the will is invalid. You can object to probate and contest the will under SCPA 1404 and EPTL 3-2.1.

For a broader overview of estate conflicts, see our inheritance dispute attorney page.

The main New York remedies for suing a sibling over an estate

1. Discovery and turnover proceeding (SCPA 2103 and 2104)

When a sibling has taken, concealed, or refuses to return money or property belonging to the estate — for example, draining a bank account, removing jewelry, or transferring a parent's funds before death — the fiduciary or an interested party can bring a discovery and turnover proceeding in Surrogate's Court. SCPA 2103 lets the court compel the person to appear and be examined about the assets; SCPA 2104 allows the court to order the property turned over to the estate. These proceedings are frequently used to unwind suspect lifetime transfers and to recover assets a sibling claims were "gifts."

2. Compelling an accounting and removing a fiduciary (SCPA 711, 719, 2205)

If your brother is serving as executor or administrator and is acting improperly, a beneficiary can petition to compel a judicial accounting under SCPA 2205 and to suspend or remove him under SCPA 711 and 719. Grounds for removal include dishonesty, waste or mismanagement of estate property, a conflict of interest, or failure to obey a court order. The court evaluates fiduciary conduct against the prudent-investor and loyalty standards of EPTL Article 11. Breaches of fiduciary duty can also support a surcharge — a money judgment against the fiduciary for losses caused.

3. Partition of inherited real property (RPAPL Article 9)

When siblings inherit a house as tenants in common and cannot agree on whether to keep, sell, or buy each other out, any co-owner may bring a partition action under RPAPL Article 9. Because most homes cannot be physically divided, the court typically orders a sale and divides the proceeds, with adjustments for items like one sibling's payment of taxes, mortgage, or repairs, or another's exclusive use of the property. Partition actions are filed in Supreme Court, not Surrogate's Court.

4. Will contest (SCPA 1404, EPTL 3-2.1)

If you believe a will is invalid, you can object to its admission to probate. Common grounds are improper execution under EPTL 3-2.1, lack of testamentary capacity, undue influence, fraud, or duress. SCPA 1404 gives objectants the right to examine the attorney-drafter and the attesting witnesses before deciding whether to file objections. Undue-influence and capacity claims are heavily fact-driven; New York courts examine the testator's condition and the circumstances surrounding the will's preparation, as discussed in cases such as Matter of Kumstar, 66 N.Y.2d 691 (1985), and Matter of Walther, 6 N.Y.2d 49 (1959).

Where you file: Surrogate's Court vs. Supreme Court

Most estate disputes — discovery and turnover proceedings, accountings, fiduciary removal, and will contests — are heard in the Surrogate's Court of the county where the decedent lived (for New York City, that is the Surrogate's Court in Manhattan, Brooklyn, Queens, the Bronx, or Staten Island). Partition actions over real estate are generally brought in Supreme Court. Where claims overlap, the courts can sometimes consolidate or transfer matters, and an attorney can advise on the most efficient forum.

What to expect: the stages of the litigation

1. Petition or complaint. The case begins by filing a petition (Surrogate's Court) or summons and complaint (Supreme Court) describing the relief you seek.
2. Citation or service. In Surrogate's Court, the court issues a citation requiring the other parties to appear; in Supreme Court, the defendant is served and answers.
3. Discovery. Both sides exchange documents, take depositions (including SCPA 1404 examinations in a will contest), and may issue subpoenas to banks and other third parties. Discovery is usually the longest stage.
4. Motions and settlement/mediation. Many estate disputes resolve through negotiated settlement or court-encouraged mediation. Summary judgment motions may narrow or end the case before trial.
5. Trial and decree. If the matter is not settled, the court holds a trial (or a jury trial in certain will contests) and issues a decision. The losing side may appeal to the Appellate Division.

Timelines and costs

Timelines vary widely with the county, the court's calendar, and how aggressively the matter is litigated. A relatively straightforward proceeding may resolve in several months, while a contested will challenge or a discovery proceeding involving complex financial records can take one to two years or more, especially if there are depositions, third-party subpoenas, and motion practice.

Costs depend on the complexity and the level of conflict. Court filing fees in Surrogate's Court are set by statute and scale with the size of the estate. Attorney fees vary by case and engagement type; contested matters that proceed through full discovery and trial cost substantially more than disputes settled early. We do not quote a fixed price for litigation because every dispute is different — we discuss fees candidly at the outset.

Should you settle or litigate?

New York courts strongly favor settlement, and many sibling disputes are resolved by stipulation, mediation, or a negotiated buyout before trial. Litigation provides a neutral forum, enforceable orders, and finality when negotiation fails or when a sibling has acted in bad faith. The right path depends on the strength of the evidence, the value at stake, and whether the relationship can realistically be preserved.

Talk to a New York estate litigation attorney

If you are facing a dispute with a sibling over a parent's estate, the Law Offices of Albert Goodwin can help you choose the correct proceeding and protect your interests. We handle estate and trust litigation in Surrogate's and Supreme Courts and have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

This article was written by Albert Goodwin, Esq., a New York estate litigation attorney. It is provided for general informational purposes and is not legal advice; outcomes depend on the specific facts of each case. Last updated 2024.