A question that Wills and Estates lawyers hear frequently is "what can I do about the executor?". The activities of the executor that cause concern can be anything from outright theft to simply doing nothing at all. And there is an unbelievable variety of things in between.
One of the most common examples of executor's behaviour that causes concern is distributing the deceased person's estate in a way that the executor thinks is fair, even though it's not what was directed in the Will. Obviously the role of executor is very poorly understood, because time and time again an executor will ignore the Will and pay out the estate according to his or her wishes, which is clearly not what he or she is supposed to do.
An example of this is an executor who divides the estate equally among him/herself and siblings, even though the parent's Will divided things a different way. I've asked executors over the years what the heck they thought they were doing by ignoring the Will, and the answer is always "but it's more fair this way", or some variation on "I didn't want to upset someone by leaving them less than the others".
This is not okay. The executor's job is to follow the Will, regardless of personal feelings. It's not the executor's money or the executor's decision. (As an aside, this is something that people need to consider when choosing an executor and one reason why family members don't necessarily make the best executors).
So who watches over these activities? Are there any executor police who keep an eye on executors? There is only one group of people who has the right to keep the executor on track with the Will. That group is made up of the residuary beneficiaries of an estate.
The residuary beneficiaries are the people who are sharing the bulk of the estate once bills have been paid, household and personal items have been divided, and specific gifts of cash have been made (such as to a charity).
When a residuary beneficiary has asked me for advice on what to do, and I've told them of their right to keep the executor on track, I sometimes get the response that the beneficiary doesn't want to make a fuss about who is getting what, because he or she doesn't want to look greedy. I understand that, and I agree with the general concept of not making waves that don't need to be made. However, a residuary beneficiary has not only the right to examine what the executor is doing, he or she also has an obligation to do so.
If the beneficiary knows that the executor, who has agreed to follow the Will by accepting the job as executor, is now violating that agreement by ignoring the Will in full or in part, then the beneficiary should insist that the executor follow the Will. Who else is there to stand up for the deceased person if the executor is not doing so, other than the beneficiaries of the estate?
Some of the actions that can be taken against an executor who doesn't follow the instructions in the Will include removing the person as executor, causing the executor to lose his or her executor's fee, or even personal liability if the behaviour is egregious.
One of the most common examples of executor's behaviour that causes concern is distributing the deceased person's estate in a way that the executor thinks is fair, even though it's not what was directed in the Will. Obviously the role of executor is very poorly understood, because time and time again an executor will ignore the Will and pay out the estate according to his or her wishes, which is clearly not what he or she is supposed to do.
An example of this is an executor who divides the estate equally among him/herself and siblings, even though the parent's Will divided things a different way. I've asked executors over the years what the heck they thought they were doing by ignoring the Will, and the answer is always "but it's more fair this way", or some variation on "I didn't want to upset someone by leaving them less than the others".
This is not okay. The executor's job is to follow the Will, regardless of personal feelings. It's not the executor's money or the executor's decision. (As an aside, this is something that people need to consider when choosing an executor and one reason why family members don't necessarily make the best executors).
So who watches over these activities? Are there any executor police who keep an eye on executors? There is only one group of people who has the right to keep the executor on track with the Will. That group is made up of the residuary beneficiaries of an estate.
The residuary beneficiaries are the people who are sharing the bulk of the estate once bills have been paid, household and personal items have been divided, and specific gifts of cash have been made (such as to a charity).
When a residuary beneficiary has asked me for advice on what to do, and I've told them of their right to keep the executor on track, I sometimes get the response that the beneficiary doesn't want to make a fuss about who is getting what, because he or she doesn't want to look greedy. I understand that, and I agree with the general concept of not making waves that don't need to be made. However, a residuary beneficiary has not only the right to examine what the executor is doing, he or she also has an obligation to do so.
If the beneficiary knows that the executor, who has agreed to follow the Will by accepting the job as executor, is now violating that agreement by ignoring the Will in full or in part, then the beneficiary should insist that the executor follow the Will. Who else is there to stand up for the deceased person if the executor is not doing so, other than the beneficiaries of the estate?
Some of the actions that can be taken against an executor who doesn't follow the instructions in the Will include removing the person as executor, causing the executor to lose his or her executor's fee, or even personal liability if the behaviour is egregious.
How can a family member get the court to appoint an estate administrator?
ReplyDeletepjewers@yahoo.com
Firstly, the family should agree on who should be the administrator. Be aware that depending on where you live, there is likely a law that gives priority to certain individuals over others. For example, a spouse of the deceased is likely to have priority over a sibling of the deceased. This is something you'd have to research, or ask a lawyer in your area. In Alberta, the list of who has priority is in Rule 11 of the Surrogate Rules of Court.
ReplyDeleteOnce the administrator has been agreed upon, those with equal or higher priority to the chosen person will have to say in writing that they don't want to be the administrator.
Then there has to be an application made to the court in the form prescribed by law in your province or territory. The administrator is the person who has to make this application. It contains an affidavit that has to be sworn in front of a Commissioner for Oaths.
You can either do the application yourself, or hire a lawyer to do it. On my blog I have posted links to do-it-yourself probate/administration kits for Ontario and BC. I'm working on one for Alberta that will be published in early 2011.
In some parts of Canada, the application for administration has to be made in person in court, but in most areas no court appearance is required. The application is made by sending your bundle of documents, signed and sworn, to the court.
The family can help the administrator by helping to assign values to assets and by finding out what debts exist.
How costly would action against executors be? I received notification of my mother's will 13 months after her death. At 19 months I e-mailed the lawyer to inquire about progress and he said letters requesting personal information had been mailed out last week about distributing mineral rights, but the money and my parents' personal items would be in the hands of the executors to distribute. What can I do if I do not receive any of this (the will indicates equal disbursement among children) and how much would legal action cost? As a point of interest, I have not received any correspondence about mineral rights and it has been 2 weeks since the e-mail.
ReplyDeleteLitigation against executors can be very costly. You will probably be expected to provide the lawyers with a retainer before they'll start, unless you can arrange to assign part of your share of the estate to the lawyer as payment. It does sound as if something or someone is taking longer than usual in your case, as most estates are wound up within a year.
ReplyDeleteMy uncle passed away in January - he had no living children. The man named as the executor in his Will has done nothing. My uncle's home was supposed to be sold and the proceeds donated to charity, and family members were supposed to be able to retrieve heirlooms from the house. My uncle did have money in the bank, but the executor has still not used this to pay for my uncle's funeral, his grave is unmarked, and the executor did not contact the bank to make sure that mortgage payments were being paid out of my uncle's bank account. The house has now been reposessed by the bank and all the locks have been changed, locking all the heirlooms inside. The executor has still not contacted the bank, and he told the neighbours "don't tell the family" (thank goodness they called us anyway).
ReplyDeleteObviously we need to replace this guy. How do we go about this? We're in Ontario.
I have found your blog to be very useful and have a situation that I could use your advice on. My stepmother is the executrix and residuary beneficiary. My brother, stepmother and me are to receive shares in a holding co that owns half of an operating co. The holding co has about $900,000 in cash and several million in land assets. My stepmother has liquidated most of the stocks, cash that she was left (what was outside of the holding co.) upwards of $700,000. Now she is treating the money in the holding company as if it is her personal account and has paid specific bequests to grandchildren, vacation, personal legal and tax bills, and now wants my brother and I and agree to pay the estate legal fees ($170,000) out of the company. She has not distributed shares as she is waiting for clearance certificate however distributed everything outside of the company to herself already. What is my recourse? Can I demand an accounting now? Should I discuss with the estate attorney to make sure he knows that we are not okay with this? Do I have to wait and do a passing of the accounts?
ReplyDeleteThanks!
My mother passed away in March of this yr. Although my family knows full well that my mother expected us to ALL divide her things (household items) amongst us, she did not specify it in her will (as far as to what she wanted to go to whom). Once her house sells there is plenty of money to pay out all outstanding debts. However, some beneficiaries have no interest what so ever in having any of our mother's things and therefore want to sell EVERYTHING she owned (with the exception of jewlery because my mother made it clear in her will that her jewlery is not to be sold but instead divided equally amonst 5 of us girls). Some memebers of the family that don't want any of mom's things expect those of us that do to pay for it at fair market value -25%. One sister was chosen to be executrix but she has renounced...I am taking her place but she expects me to carry out the dealings with the houselhold items the same way she intended to. My mother's estate doesn't even add up to 500,000.00 in total including everything she owned and my ex-executrix sister (as well as another sister/beneficiary) wants to spend stupid money to pay for evaluations done on every stitch of mom's household items. How do I make them understand that this long and costly way of doing it is of no benefit to anyone in the family since chances are everything will not sell and whatever does sell, won't likely sell for the fair market value price?
ReplyDeleteIn a situation like this, the wording of the will can be really important. As I can't see the will, I can only make some general remarks about this kind of thing and hope that you find something useful in them. For example, if the will was drawn by a lawyer, it may contain a power to give items in the estate "in specie", meaning in its current form without it being sold. That would give you as executor some flexibility in how you deliver items, and you can't be forced to sell everything and give cash if the will indicates otherwise.
ReplyDeleteOften Wills are set up so that household and personal items are dealt with first, and later in the will, the "residue" or rest of the estate is divided up. Doing this has the effect of allowing the division of household and personal goods to be done in a way that does not have to be equal money-wise. This depends very much on the wording. The will might say that they are to be divided up "as my children agree", which says nothing about it being equal, and in fact maybe even suggests that it shouldn't be equal. It might say that the executor gets to decide. Check the wording carefully. Unfortunately it sounds as if some members of your family are worried that someone is going to get more from the estate than they are, which of course is not confined to your family but is pretty widespread among families in general.
If the sister who renounced wants to make the decisions about how the estate is run, she shouldn't have renounced. You have an awful lot of people trying to run the show. The longer this goes on without you taking control, the harder it's going to be. Do you have a lawyer or trust company to help you maintain control over the "back seat drivers"?
In my experience, it is extremely unusual for household items to be valuated by an auctioneer or appraiser unless the items are antiques or artwork, or something else with intrinsic or resale value. Generally the household goods are given a nominal value of anywhere from $1 to $1,000 to include everything in the house. Second-hand clothing, furniture, books etc don't have any resale value; their value to the family lies in the fact that they belonged to your Mom.
You are correct that items have to sell at fair market value. As I've said, on most items the value will be disappointingly low. You might suggest some kind of division scheme, such as drawing straws etc to decide who goes first, or some other way to decide the order of choosing, then keep choosing until people don't want anything else. Keep a list of what everyone chooses. Whatever isn't chosen may be sold at a garage sale and the money divided among everyone. Something like this might be the compromise that everyone needs.
Best of luck with this. I don't envy the position you're in.
My husband's sister is the executor of his father’s estate. 11/2 years after his passing she still has yet to settle the estate. Our main issue is she probated the house for $80, 000 without having it appraised for fair market value and tried to give my husband his half ($40, 000) My husband new it was worth more than that and asked that she have it appraised. She wanted to keep the house for her self...I think to flip it which is why she did not have it appraised knowing it was worth more. In short, she then proceeded to put the house on the market to sell for $119, 000. After 5 mths she told the real estate agent she was going to keep the house in the family and took it off the market...to keep for her self. We now found out that she had offers on the house one of which she said was for $109, 000 and she denied them all. Basically she has been living in the house on weekends when she comes to town and she does intend to keep the house for her self. We have been told that the day she denied the highest offer on the house to sell from that point on she is to assume all bills and takes on the house as her own and to pay interest to the estate to date from the amount of money ($109, 000) that would have been in the account had she have sold the house. Is this right? and can she continue to squat in the house when ever she wants for as long as she wants and not settle the estate? Oh and she at the beginning of it all she changed the locks on the house and will not let my husband in. We right now are in the process of bringing her to a passing of accounts.
ReplyDeletePlease help?
Thank you so much Lynne for responding to my post. We do have a lawyer involved and she has read the will so apparently the way my sister (executrix) was going about things so far (until she renounced) is based on the direction the lawyer has given her. Problem is, because 1/2 the family doesn't want a single item from the household items list and the other half does, that issue alone brought my executrix sister to the decision that everything would have to be evaluated (which I carried through since 1/2 the family said I had no other choice) and then those of us that wished to purchase mom's items could do so, then whatever is left over is to be sold in a sale that we ourselves could put on (rather than using estate auctioners to do it for us at a very high cost, which is about the only thing the whole family agrees on). The evaluator actually put prices on furniture that was in fair to good condition, low values but values none the less. My mom had alot of crystal, which the evaluator voiced himself as not having a great resale because crystal doesn't hold it's value (thing of the past that ppl now adays are not interested in).
ReplyDeleteI plan to come up with my own questions for the lawyer we are using and disregard everyone elses nonsence as it's taking it's toll on me mentally and unlike my executrix sister that renounced, I like to complete tasks rather than just give up and still give out orders. She did say that I need to ask the lawyer the questions but they have to be the "right" questions and that the lawyer can only give me advice but not tell me what to do...somehow this is suppose to protect me legally if other family members have issues with how I proceed to carry things out.
I know laws vary from province to province so I just thought I'd mention that we are in Alberta. If you think of anymore tips for me, I'd greatly appreciate it and I'll be sure to post on here as things progress and even share with you how it all ends.
Thanks so much, take care!
Hello Lynn; could you make a suggestion on how to handle this situation; I am co-executor with my cousin who looked after my father while he was dieing in Ontario. She was also given Power of Attorney by my father. She says that she does not know what happened to my fathers wallet or the $2000 that he withdrew from his bank two days before death. There were other cash withdrawals that she has no idea what happened to the cash. My father was too weak to walk or drive without her. How do I go about getting her to account for this cash? Thanks
ReplyDeleteI read that only residuary beneficiaries have a right to enquire about the will or proceedings thereof. But is an executor not obligated to informa ALL beneficiaries of their interest - including specific beneficiaries? I was not told and the executrix expressed surprise that the testator had informed me he had made me a beneficiary.
ReplyDeleteHello,
ReplyDeleteYes an executor is supposed to inform everyone who is going to inherit something under a will. However, only residuary beneficiaries have the right to see the whole will and the entire application for probate. Were you actually named in the will? You certainly wouldn't be the first person to be told he was a beneficiary when he actually wasn't.
Lynne
My grandmother died a year ago today and my uncle was named executor in her will. He has not taken responsibility for any of the estate or assets. He was/is using her credit cards, vehicle, and anything else of hers that he left town with.
ReplyDeleteMy family does not know which step to take. We cannot confide in the lawyer that was being used due to the fact that he only deals with the executor. There isn't much money to hire another lawyer either. We do not know if there is anything we can do, or if there is even a case.
It's very frustrating not having a say, and not being able to defend my grandmother. My uncle often dissappears and doesn't return phonecalls. For all we know, there could be even more debt accumulated by him.
Do you know what could happen to him on the part of fraud?
My father has passed and my mother has left me in charge of her health directives and my sibling in charge of the finances. My sibling is independently wealthy but has an unsavory "partner" (they are unmarried). Both are fairly greedy but, the partner is desperate for money. Moreover, my sibling is highly competitive and punitive with me (i.e. withholds information about health status of my mother)for not coming home more and has stolen in the past.
ReplyDeleteI have been warned that with my sibling being an accountant, much of the money in the estate could disappear without anyone even knowing. Can this be true? My sibling's conduct during a recent hospital stay by my Mom has indeed caused concern on my part. Are there precautionary steps you can recommend?
What can a person do if the lawyer hired has said the estate has been finalized and he is no longer involved. Then the executor has not answered any emails from his siblngs who are the residual beneficiaries and it is 8 mths since probate was issued and there is suspicion the executor is taking the money for himself and his family. Is theft not theft. If someone stole money from the bank either by force or internally in a white collar crime, then authorities are brought in. How can the residual beneifciaries obtain the same investigation and support of the law. Any answer in all the above appears to be its civil action at the cost of the resadual beneficiaries who have not got any money against an executor who has the money topay lawyers. If the exewcutorhas spent the money then it appears there is still nothing they can do and what trecourse do they have with the law if all gone. Should not the executor who does this go to jail
ReplyDeleteIf someone is stealing from you, you can call the police like anyone else can. The fact that there are civil law remedies against the executor doesn't mean that you are excluded from protection from criminal law. If you're pretty sure the executor is stealing, you have the right to involve the police.
DeleteLynne
I have a hard question my wife is sole beneficiary of her late aunt's estate but problem is that the executor is /was her family lawyer and wrote in the will that my wife has to atain the age of 40 before she assumes controll of estate.now estate is comprised of multiple properties one of wich my wife has resided in for around 25 years while caring for ailing aunt just got letter stating that the executor for liability reasons is selling all properties and evicting my wife,she has aked mutiple times for an acounting of estate monies and expenses but been ignored can this lawyer/executor do this legaly even though in 15 months my wife assumes her inheritance?this man has tried everything to discredit and attack my wie including using childrens aid society and public health department to discredit my wife and tried to have our children taken away wich by the way we won our case with childrens aid society in court and they had to withdraw their case now he is using insurance liability as and excuse to sell properties when he himself cancelled all insurance policies on said properties himself thinking he could use this as an excuse.properties are insurable but he refuses to acknowledge this who can we apeal to to stop this man before he destroys the estate in it's entirety can we apply to courts to have him removed as executor as he definately is not acting in my wifes best interests as was stated was his responsibility in the will he has not doneand refused to do any repairs to our home we have done this ourselves to satisfy CAS's "concerns"at the cost of around 10'000 dollars now he says he is selling our home and evicting us help please!!!!!
ReplyDeleteAlthough it is going to be difficult, you are going to have to separate the legal issues from the personal issues. If you approach a court to talk about trustee conduct, the parts about the CAS, as painful as they may be, are irrelevant.
DeleteThis part about the insurance concerns me. The owner of a building that is held in trust must hold fire insurance on it as it's his duty to preserve that asset. I can't explain why he might have removed the insurance unless it has become so expensive that the trust can't sustain it. This may well be the case if no money (or not enough money) was left in trust along with the building.
He might also be selling the properties now so that he can deal with the tax issues. Keep in mind that only one property could be declared by your aunt as her principal residence, so the others would have been subject to tax at the time they were transferred to a trust. And you've said that the properties have been in trust for many years, so there may well be capital gains tax on them.
I'm not convinced that he is destroying the estate, as it seems possible that he is dealing with a trust that was simply not funded well enough. And by the way, it wasn't the lawyer who "wrote in the will" that your wife couldn't inherit until age 40 - that would have been your aunt's decision. It was her will and she signed it.
Having said all of this, if you really do believe that the executor is destroying the estate, you can apply to the court to have him removed as executor. That isn't easy to do, because courts don't really like to remove a person's choice of executor unless it's absolutely necessary.
Something that does concern me in the executor's behaviour is the failure to respond to a request for accounting. Your wife may not be entitled to an accounting for assets that did not go through the trust, but if she is the beneficiary of the trust as she appears to be, then she is certainly entitled to see what has been going on in the trust. Has she made her requests in writing? If not, perhaps she could try making a written request with a time limit (say, 2 weeks) for a reply. If there is still no response, you can consider forcing one through the courts. You might also consider lodging a complaint with the Law Society about the executor's failure to respond, as he is a lawyer.
I wish you the best with all of this.
Lynne
What about a case where there is one beneficiary, who has dementia, and therefore cannot keep an eye on what the executor is doing? And the executor is also the beneficiary's PoA?
ReplyDeleteWho is in a legal position to check up on the executor then?