Real Time Web Analytics

Pages

Monday, May 31, 2010

Where are the "executor police" when you need them?


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.

61 comments:

  1. How can a family member get the court to appoint an estate administrator?

    pjewers@yahoo.com

    ReplyDelete
  2. 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.

    Once 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.

    ReplyDelete
  3. 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.

    ReplyDelete
  4. Litigation 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.

    ReplyDelete
  5. My 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).
    Obviously we need to replace this guy. How do we go about this? We're in Ontario.

    ReplyDelete
  6. 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?
    Thanks!

    ReplyDelete
  7. 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?

    ReplyDelete
  8. In 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.

    Often 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.

    ReplyDelete
  9. 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.

    Please help?

    ReplyDelete
  10. 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).

    I 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!

    ReplyDelete
  11. 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

    ReplyDelete
  12. I 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.

    ReplyDelete
  13. Hello,
    Yes 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

    ReplyDelete
  14. 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.

    My 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?

    ReplyDelete
  15. 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.

    I 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?

    ReplyDelete
  16. 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

    ReplyDelete
    Replies
    1. If 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.

      Lynne

      Delete
  17. 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!!!!!

    ReplyDelete
    Replies
    1. Although 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.

      This 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

      Delete
  18. 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?

    Who is in a legal position to check up on the executor then?

    ReplyDelete
  19. I am one of 7 beneficiaries to my parents' separate wills. My mother passed away 7 years ago at the age of 88 and my father a year later (6 yrs. ago) at the age of 92. Neither had involved estates as no property was involved and though we were not middle class, we were not poor. All investments were done by my brother, a financial advisor who is also the executor for both their wills. After 3-4 yrs. of nothing, I hired a local lawyer to inquire what was taking so long. I had not even a copy of the two wills. My lawyer's involvement resulted in our receiving a copy of my mother's will and a sum of money from her estate. The letter from the lawyer involved said that the final amount with documentation would arrive shortly. I then received a cheque from my father's estate. Still no copy of the will nor any kind of statements. Nothing has happened since. The other siblings do not willing to do anything to hold him accountable. One of my sisters has recently passed away and I am executor of her will. I contacted both my brother and his lawyer to insist that my parents' estates be closed and signed off so that I can settle my sister's estate - as I am her executor. Nothing has happened. I understand that taking him to court is very expensive and I could not handle those expenses on my own. The total amount I have received from both estates is less than $20,000. I do not think there is a lot of money left, particularly when it is divided amongst the 7 of us, but am concerned what my brother is hiding as he still refuses to bring this to closure.
    What can I do to get some answers?
    Can I go ahead and close my sister's estate without knowing that she has received her full share of my parents' estates?

    ReplyDelete
  20. Lynne Butler--- My brother passed away Sept. 20/13. The executors have not paid the bills, my brothers grave is unmarked; their plans are to leave a term deposit in until it matures(another 2 years) They do not want the estate lawyer to pay the bills or distribute my brothers estate money. Please advise.Please reply

    ReplyDelete
    Replies
    1. Executors have a great deal of discretion on how they manage an estate, but they still have to operate within the general guidelines. One of those guidelines is that an uncomplicated estate should be wound up in about a year. You have the right to insist on having your inheritance within a reasonable time. If they cash out a term deposit before it matures, there is no loss of interest when it belongs to a deceased person, so there is no loss to the estate by cashing it.

      Unfortunately, the only way you can enforce your rights is to hire a lawyer. It may take a lawsuit, or the executors may decide to be more reasonable instead of being sued.

      Lynne

      Delete
    2. Hi Lynne, I have found your posts very useful. I was wondering what actions would be available to my parents who are currently involved in a sticky situation since my Grandmothers death. My mother along with her two siblings are all executers to my grandmothers will. My Mother and Uncle both live in Canada with my Aunt living in the United States. The item of contention is the family cottage and its contents. My Mother and Uncle are planning to buy my aunt out at the appraised value of the cottage and contents but are just waiting on some land surveys to come back and some land deeds to be updated before they do this. Currently the cottage is still part of the estate and was decided amongst everyone to share time this past year equally. My aunts time just ended and my Mother and Uncle went up to the cottage to find many items and family heirlooms missing, The neighbours said that a large moving van had arrived the day before and loaded up with furniture, art, books etc… and left. What can the remaining two executers do now that my Aunt has stolen from the estate?

      Delete
    3. Hi Lana,
      Obviously what your aunt has done is not okay. It's wrong not just because she's a beneficiary but is doubly wrong because she is an executor.

      To force her to repay the cost of the items she took, the other executors would have to use the courts. They should consider that a last resort because it's expensive, lengthy, and ugly.

      The two remaining executors should deduct the cost of the missing items from one of the following:
      a) your aunt's executor fee
      b) your aunt's share of the cottage
      c) your aunt's share of the rest of the estate (assuming they are all beneficiaries).

      In other words her share is to be reduced by the cost of the items she took and if she doesn't like it she can give them all back.

      Executors are supposed to be acting unanimously so this won't be easy, but as I said, the only other alternative is suing her.

      Lynne

      Delete
  21. Hi Lynne,
    a truly great and insightful site,
    I have a few questions regarding a late parent's estate, my late parent had a will, simply stated that upon her death,her house an possessions would be left to 4 of her children. Which in my view should be divided equally between the 4 beneficiaries?
    my sister is executor, who is not named as a beneficiary, the estate is almost wrapped up, the house was sold, and taxes were paid from estate sale of the house, I have requested a copy of her account of estate costs, which under BC WESA, I am legally entitled to ask for. She insists that I bear the taxes from my share of estate costs, which I have no idea of what house sold for, or even what the tax amount came to. all she has done, is told me to take the amount she is offering from estate or nothing at all. when I ask for her accounting of estate sale of house, she gets mad and hangs up.
    I feel compelled not sign any releases, until I see her accounting, I feel she is not abiding by the rules of BC WESA.
    I have reminded that her of role as executor is to be impartial and to be even handed in handling distribution of estate assets.
    she refuses to show me statements regarding estate. I hate to do it, but feel that going before a judge might be my only option in this matter.
    Your advice is greatly appreciated on this matter!

    ReplyDelete
    Replies
    1. I agree with you that going to court might be your only option. You are not asking for anything to which you are not entitled, or anything unreasonable. It's her job to report to the beneficiaries, if she likes it or not. If the judge has to order her to hand over an accounting, he or she will most likely assess costs against the executor for being so difficult.

      Lynne

      Delete
  22. This comment has been removed by the author.

    ReplyDelete
  23. My estranged husband passed 5 wks ago, his lawyer delayed the divorce trial 2x. Circumstances included abuse, death threats, financial ruin, deception about our finances (he was receiving disability tax free funds that were 4 times what I could earn working more than full time, and told me we had no money), forcing me to work to the detriment of my health and hardship for our child. Gambling, alcohol, manipulation, were characteristic behaviors, that other family (he was married 2ce)and his friends did not see. We hid his faults, His charasmatic personality and Dr. title obscured the truth of our homelife. We left when the police told us to get safely and securely away after a written threat. His adult (36years and older) children and ex from his first marriage have claimed the Executor position and have distributed the estate between themselves. It is unlikely probate has been done, and questionable the Will was done when he was mentally stable. His critical illness included Seritonin syndrom> new psych drug he was prescribed. The Internist stated he only had a couple of good years after two major heart surgeries, leaving him with documented lacunae in his brain. I was informed he would have early dementia, and that combined with his sociopathic personality led to distruction of our family, marriage of 18 years, and his own self-destructive behavior. Executor did not send us notification of his death, has not sent a copy of the Will, or any estate documents. She wanted to know what we meant by asking for them, and she stated she had distributed and disposed of some of the estate. I gather we are not in the Will, though we are the legal dependants. The executor states she is getting legal direction from the divorce lawyer who has a conflict of interest with me as he represented me on several occassions one of which I declined to finish with him due to his breech of confidentiality (he told my spouse what was in my independant Will). This lawyer obtained a court order exparte for my spouse to take all our family savings from our joint family account, with a rational to the judge that there was enough in the properties to cover....but left my child (14yrs) and myself pennyless, driven out of our home, and stuggling to find work. This lawyer negotiated land days before my husband's death that did not meet bylaws. or competent agreement of the Holding co. that my husband was sole proprietor of. I have been beleguered by 100 page Affidavits given on a Tues, to have a response filed the same week Thurs. This has jepardized my health, my job, and my child's grade point average. No child support, as there was never full disclosure of his finance, nor did he declare capital gains from sales of properties before or after separation. We were terrorized with tampering to our vehicle such that the RCMP believed there was no coincidence involved. The lawyer gagged the reports from 2 of my child's schools. This lawyer arranged a court hearing to try and take my house and all the contents (we were driven away with 4 suitcases between us, the police ordered his guns and amo taken away). My estranged husband wandered away from the court just before our case was to be heard, much to the dismay of his lawyer, who asked repeatedly for my spouse to be paged...the judge denied the order. To summerize, a very messy, multiple adversaries, unjust method of devesting a wife and child by a very demented spouse, unethical lawyer, and greedy previous family.
    How do I compel the Exector to send us the Estate documents, copy of the 'Will', acknowledge the minor dependant child's rights to adequate support from the estate, my claims on the estate as surviving spouse? What about the divorce trial due next year, I am informed the Executor is representing? Does the Estate have to stay intact for the claims filed prior to his death? Is there any legal forum that enjoys challenges and champions complex cases like this?

    ReplyDelete
  24. Hi Lynne,
    My sister, who is a Certified General Accountant, had Dad change his will after he was diagnosed with dementia. She had a covenant request put on the sale of his house and land, and she and her husband recently bought this land, for $67,000 less, because of the coventant. A lawyer said he will help us, but wants $10,000 retainer. How high could cost get? Can she be reported to CGA board for violating ethics?
    thank you
    Lorna

    ReplyDelete
  25. Hi Lynne,
    Please help with advice. I have a friend. She lost her husband 10 years ago. He left a Will, which had been proven in 2005. He did not leave any debts or had other financial problems. The grant of probate of non-contensious matter was issued in 2005. The executive (a brother of deceased) refused to do distribution to the widow and went to a civil court of law against the proven whishes without any basis. Ten years passed, but my friend widow, as benefitiary of "Specific Bequest", have not received this bequest yet. What to do next?

    ReplyDelete
    Replies
    1. That depends on what went on the courts. I have no idea what you mean there, or what impact it might have on the rights of the various parties.

      If the executor is not distributing the estate, then your friend needs to hire a lawyer and force him either to distribute it, or get taken off the job so someone else can distribute it.

      Lynne

      Delete
  26. Hi Lynne.
    Recently an auction was held for the remaining cemetery plots my father held, joint with another party. My father's executor claimed he had all necessary documents to transfer the deed. The same executor insisted I pay for plots right after the auction. Now it is time to transfer the deed and apparently the cemetery requires the death certificate of the joint party who died prior to my father. My father's executor can not provide this death certificate and does not appear to be ready to locate one. I am being asked to sign forms excepting the plots but I know from the cemetery not all requirements have been met. What can I do.
    I have no idea what to do and I am out a few thousand dollars and no plots.

    ReplyDelete
  27. My Stepmother passed away in November. Her son was named as executor in her will. She had no debt, but named 5 of his cousins. (her nieces and nephews)
    The executor was to get 75% and the 25% to be split amongst the cousins. In the will it stated the funeral costs be paid out of her estate. My stepbrother went to the bank and collected all the monies without paying the funeral costs aslo did not disburse the monies to his cousins. I am looking for advice my father is distraught that he betrayed him and didn't abide by the will. Is there anything my father can do?

    ReplyDelete
    Replies
    1. Yes, there is something your father can do, but it isn't easy. He and the other beneficiaries have the right to receive their inheritance under the will and can enforce that right through the courts. As you know, that takes money.

      Because it's a family member, your father might try getting the executor to participate in mediation. I suspect that the executor will just refuse unless he knows he could be dragged into court if he doesn't at least try to settle matters out of court first.

      If it goes to court, the result will depend on many factors, including whether the executor still has the money or has spent it. The court can order that the executor be removed and the estate money given to a new executor, or that the current executor pay the beneficiaries by a certain date. I would suggest looking around for a lawyer who a) believes in mediation where it's appropriate and b) has experience with estate matters.

      Best of luck. Let me know what happens.

      Lynne

      Delete
  28. My mother recently passed away, and my sister and I are named as executors. There are 5 children, and she has quite a large investment portfolio that is to be cashed out and divided amongst the 5 children. The issue is one brother has had substance abuse problems, and the will states there is to a an annuity purchased for him, giving him a monthly stipend. Do we have to purchase the annuity, or can we just give him his share?

    ReplyDelete
    Replies
    1. As executors you are legally obligated to follow the will. You do not have the legal right to ignore the parts of the will that you do not like or agree with.

      Lynne

      Delete
  29. If a will states an annuity is to be purchase for someone, does it have to be done, or can the monies just be paid out?

    ReplyDelete
  30. I am the executor of an estate in which the sole beneficiary is a non-governmental organization. The funds are to be directed to specific projects, and the organization must submit proposals/budgets to the executor before funds are released. The Will further stipulates that all funds are to be dispersed on or before the fifth anniversary of death. The five-year mark is approaching, and I have received proposals for only half of the funds. Can I legally ignore the five-year deadline and extend the time needed to settle the estate? Thanks.

    ReplyDelete
    Replies
    1. If the will imposes a five-year deadline, it should state where the money goes if the deadline is not met. I would assume the will names other beneficiaries in the event the funds are not disbursed. The rights of those beneficiaries cannot be ignored, and they will likely challenge you if you choose to ignore the deadline.

      It's possible, of course, that the will has a flaw and doesn't say what to do if the deadline isn't met. If so, you're in a tough situation in the sense that no matter what you decide to do, someone is probably going to be upset. Without guidance from the will, I expect you'll have to ask the court for what we usually call "advice and direction". This means getting a judge to help you decide what to do, giving you the legal authority you need as back-up.

      Lynne

      Delete
  31. Lynne, thank you very much for your reply. In this case, there is only one beneficiary (the organization), and nobody will be upset if the five-year period is extended. The delay has been largely due to the beneficiary organization's difficulty (and foot dragging) in implementing one of the funded projects in the particular manner specified by the deceased. I am confident that this will be resolved, but not soon enough to meet our September 2016 deadline. Given that neither the executor nor the beneficiary has any objection to the time extension, do I still need to seek direction from a judge? In other words, my question is really one of whether the executor has a legal obligation to follow the time limit stated in the will even when both executor and beneficiary desire to extend it. Thanks.

    ReplyDelete
  32. Hi lynne ...My Father died just recently and my Mom pass a couple years ago ...Both had a will ...Both were living in a home with my sister ....Now that my Dad has passed my sister has changed the locks on his part of the house and well not allow anyone that had=s property left to them in my fathers and my mothers will to get this propery...Is there anything we can do about this

    ReplyDelete
  33. Hi Lynne,
    I am the beneficiary of a will. So far the executor was doing his job. Last year he gave me a check from the estate, except the holdback to pay taxes. Last week he called me to tell me, that everything was paid, all the documents are ready and soon I get my check. Now he is demanding half of remaining holdback from me telling me how much he helped me. He wants to split the money and get 2 checks from the bank. He already got his executor's fee. He wants to give me my check and the documents at the bookkeeper's office. Do I have to give any money to the executor? Do I have to meet him in person or the book keeper can mail me the check and the documents? Is there any other way to get my check? I would like to avoid meeting him.

    ReplyDelete
    Replies
    1. No, you don't have to meet him. I expect that the reason he wants you to pick it up in person is so that you can sign the release at the same time. That's usually how we get around the distrust issue of "what if I sign but he doesn't send the money?" and the corresponding "what if I send the money and he doesn't sign?" It seems unlikely under the circumstances that he'll allow the cheque to be mailed to you when you aren't going to sign the documents.

      If he has already received a fair fee, you do not have to agree to a further fee. If he will not pay out the estate in a way that you believe follows the will, then your recourse is to apply to the court to make him pass his accounts, part of which includes him justifying his fee to the court. Keep in mind that the court may allow his legal fees to be paid from the estate, in which case you will lose some of the money anyway.

      Lynne

      Delete
    2. Thank you so much Lynne!

      Delete
  34. Hi, Lynne.

    My sister and I had a very tumultuous relationship with my grandmother and were estranged from her at the time of her death. Our cousin, with whom we have never been terribly close, is the executor of her estate and, we believe, the primary beneficiary.

    In the unlikely event that my sister and I are still included as beneficiaries in my grandmother's will, is there anything to prevent my cousin from withholding this information from us and keeping the entire estate?

    ReplyDelete
  35. Hi

    My Husband was POA of his father then his brother lied to his father about my husband had it changed we never received any documents of revoke now My father in law is in nursing home with Dementia brother is law sold house etc is there anything we could do?

    ReplyDelete
    Replies
    1. Do about what? Does your brother want to be the POA again? Does he want to revoke the one that appoints the brother? Does he want his share of the house proceeds? This question is just too vague to answer.

      Lynne

      Delete
  36. My older sister Maria who is the executor is with holding money from me from my father . I believe there is no stipulations on how its to be given . Knowing him , the will does not say withhold the money until so and so .Both of my sisters are very controlling . My sister Maria who is the executor is doing this to me . She asked for my copy of our fathers will , because she needed it for one thing she had to do and I believe , she never returned it to me , because I cannot find it anymore here . Perhaps I need a lawyer to write them each a letter stating they cannot withhold money from me . I can prove who I am and have his photos and writings . I will try to get another copy as soon as I can find out who made the legalized will . I believe , they cannot with hold money from me , as long as there are no stipulations and I sincerely believe there are non . What my sisters are doing is illegal .My father lived in Lyndon Washington My father passed away Jan 2016 and all what needed to be done is done and complete except for this . I got some money but recently some property was sold I was to receive this cash , I found out later Thank you for any response to this .

    ReplyDelete
  37. Hello,

    After my uncle passed away I was told by my aunt I and 6 other were going to be his beneficiaries. 2 of which are his long time friends children. He lived in a different city then the rest of the family and for convinience name one of the friends children as the executor. We email her as an introduction and she replied we were beneficiaries and to except a letter from the lawyers. When the letter came it was with a redacted and filter copy of the will that showed almost nothing about anything. I made a formal request to her to see the full unedited copy and was told I'm not a beneficiary and cant see it. In the snipit of paper I did receive I am receive some of his personal property and money. He did not own any land. I do not really care what is on the will I just want to know whats on it. What do?

    ReplyDelete
    Replies
    1. Hi. As harsh as it might seem, I believe that the executor is right in this case. You are only entitled to see the part of the will that gives you your bequest. You can't force her to give you a copy.

      You can try searching your uncle's name at the probate court to see if the executor submitted the will for probate. If so it's now public record and you can get a copy there. Since you said your uncle didn't have land, it's quite possible that the will is not going to go to probate so you'll be out of luck.

      Lynne

      Delete
  38. Hello,
    I have an aunt living in the states, whom is the executor. My grandfather passed a few years back. And stated in his will my siblings and myself were to receive a chunk of money when turning the age of 28.
    My aunt now refuses to speak to any of us or give us what my grandfather wanted.. is there anything we can do? Lawyers or is it a lost cause?

    ReplyDelete
  39. Hello,

    I have a very specific question. If a will does not specify how to distribute the liquidated proceeds canthe executor determine the “cut” for each beneficiary or is it understood that it should be equal between all?

    ReplyDelete
    Replies
    1. It's a pretty bad will that doesn't say this, but yes I would assume an equal distribution. I say this because an estate is a form of trust, and in the absence of any other instructions, a trustee is bound to maintain an even hand among all beneficiaries.

      Having said that, the executor is entitled to reduce the share of a beneficiary if that beneficiary owed money to the deceased or to the estate. Other than that, no, the executor does not get to determine each person's cut.

      Lynne

      Delete
  40. Hi Lynne , my brother died leaving his 3 sisters ( I am one of them) 1/3 of his estate. My oldest sister the executor sent me some money 8000.00 with no copy of the will and no accounting. I know the estate should have had more funds but the refueses to give he further information. I do not have a lot of money to fight her in court , is there anything I can do on my own to force her hand to provide the information. Thank you

    ReplyDelete
  41. My mother passed away recently. I obtained a lawyer and asked him to search for a Will, I do believe there is one. My older siblings, who know they very well aren't benefited, went with another lawyer, and is trying to get one of them appointed the estate trustee. My younger sister and I have not consented to her being appointed, unless co-administrator with me. She's trying to get us to sign a lot of stuff now, and is throwing stuff out from our mothers house, which we didn't know until recently. She is acting like she's in charge when nothing has been finalized yet. She wanted us to sign an agreement for things to be removed from the house, but we don't agree since they are just throwing things out and have done so before asking if we agree. I also still want a Will searched for still, what can I do?

    ReplyDelete
  42. Hi Lynne,
    My mother passed away July 2015. My brother was named executor of her Will but has never provided a copy to mysel or my sister. My Dad recently went into a home due to the fact he had dementia. My sister had moved in the house over 6 montages ago to care for my Dad. Now that Dad needs more care and no longer resides at the family home, my brother is trying to force her to leave. He states he owns the house and all its contents. This is not true. Their are personal belongings of myself, my sister and the grandkids as well as my parents belongings. My brother is going against my parents wishes and has not read my Moms will. My Dad is alive still but my brother wants to sell the house or rent it. My parents had wanted my sister to live there.
    He is not acting appropriately. He is bullying my sister, threatening me and my sister, he abuses drugs and alcohol. Can he be removed as an agent executor if he is not following my parents wishes and not performing the duties of the will and if he is acting in his own interests? He is is jeaopatdy if loosing his job do he is trying to force my sister out of the house so he can sell the items inside, confiscate the investments and rent the house.
    My Dad gave my sister POA over the finances and my brother is trying to force her to sign it over to him.
    What legal rights do we have?
    He also told my sister I have no rights! I am the youngest child. My sister is the oldest at 53, my brother 51 and I will be 49.
    This upsets me greatly as there are sentimental things that were to go to us, the grandchildren and great grandchildren. My brother refuses to comply with any of it. It’s all about greed on his part. It’s totally disgraceful to my Mom’s memory and my Dad who is struggling with Demetria.
    My Mon before she passed and confided in me that she was concerned she made a mistake and wish she had time to change her will removing my brother. She was worried this might happen. I just want my parents wishes followed. What is our legal right?
    Thank you for any assistance.

    Disgusted and dismayed

    ReplyDelete
    Replies
    1. This sounds like a really tough situation for your whole family. The heart of the question is whether the executor can be removed but I want to cover a few other things too.

      One is the ownership of your parents' home. You refer to it as the family home and I'm sure that's how it seems, but legally it belongs to someone specific. In the vast majority of cases, married couples own their homes as joint owners. Obviously I don't know for sure that your parents owned their home this way, but it's relevant. If your parents owned the home as joint tenants, on your mother's death it belongs to your father. In other words, it has NOTHING to do with her executor. The power over what happens to the house would lie with your father's POA.

      The same goes for the items in the house. They are all considered jointly owned except for your mother's personal items such as clothing and jewelry. The rest would have been inherited by your father and are now under the care and control of his POA.

      As to whether your brother can be removed as executor - yes he can, but that's not an easy thing to do. And I'm not even sure that's the best approach here. It's not that he's doing your mother's estate wrong, it's that he is trying to administer your father's estate.

      I suspect that this is going to involve your sister hiring a lawyer to get your brother to back off and let her do her job as POA.

      Lynne

      Delete

You might also like

Related Posts with Thumbnails