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Monday, September 13, 2010

Forcing an executor to do the job properly

I note that recently I have been getting several questions on this blog about executors who either refuse to do the job properly - or at all - or who don't seem to know what they are doing. Some of the questions appear under "recent comments". Believe me, I know how stressful it can be to try to get the executor to carry out his or her responsibilities. I am frequently asked whether there is anything that can be done about a reluctant or fraudulent executor, and the answer is yes, there is. Before doing anything though, be aware that it is not going to be pretty. You could well end up in court, which is expensive and upsetting. At best it will feel like a personal power struggle.

First off, think about who would be the appropriate person to take steps against an executor. Most of the time this would be one or more of the residuary beneficiaries. A person inheriting a valuable or complicated specific gift would also be appropriate. Anyone who is losing money because of the executor's delay or actions, or anyone who can see his or her inheritance being dissipated is an appropriate person.

Always begin by gathering information. Request an accounting. Get copies of documents relating to the estate. Find out everything you can about the estate and the assets. Remember that there may be more going on behind the scenes than you realize and you should give an executor a chance to establish that.

If you are going to try to take down an executor, you will need a lawyer. It is absolutely essential that you get one with experience in estate litigation. A general practitioner who does only one or two estates a year is not your best bet. In the case of an executor who simply has done nothing at all on the estate, perhaps some or all of the beneficiaries could band together and share a lawyer, in order to split costs among them. You may or may not have your fees reimbursed from the estate, but with litigation, you will be required to put up a retainer before work starts. It might be easier to do if you can team up with others.

The courts have a variety of options available to deal with your application. In fact, applications like this are often called "advice and directions" applications because they are founded on the idea that a person goes in front of the judge to explain the situation and ask the judge what should be done. Obviously the person gets a chance to suggest what he or she thinks should be done, and the executor gets a chance to agree or dispute the person's suggestion.

The judge may remove the executor if that is what you're requesting, though this is a tough sell. A judge won't overturn the deceased's wishes lightly, particularly if less than a year has passed since the deceased died, so you would have to establish your case thoroughly and persuasively. An executor who is doing absolutely nothing while the estate loses value is more likely to be removed than an executor who is doing his best, just not doing it very well. The judge could order that an alternate-named executor step in, or that an entirely new person step in, or that a neutral third party (such as a trust company, a lawyer or the Public Trustee) be added on as an executor.

Another option is for the judge to order the executor to take certain steps within a certain timeline. For example, the judge might order that the executor file for probate or provide an accounting or pay out a sum of money. The solution will depend on the facts of each case.

Some executors will assume that by hiring a lawyer, you have issued a declaration of war. That isn't necessarily the case. Your lawyer may be able to negotiate an arrangement that is acceptable to everyone without anyone going to court.

And, again, I urge all of you to think carefully about who you name as your executor. Don't name someone to honour them or please them or because they are the first person who comes to mind. Think about what will need to be done on your estate and think carefully about whether the person you're naming can and will be up to the challenge.

2 comments:

  1. The executor, a brother, for my mother's estate has been thrown in jail for breaching provincial securities laws. No one knew at the time of his appointment that he had a dark side. He has asked my sister's (a co heir) hubby to act on his behalf. Neither will provide full disclosure, bank statements, won't call in debts and have let non heirs pilfer my mother's chattel etc. The brother-in-law has been threatening, wrong about house values, wrong about land values, wrong about not calling in debt, won't answer my questions so he's wrong about that too. I see my inheritance dwindling away over issues that he's legally obligated to provide. I can't afford to hire a lawyer and go after them in court. If I were to study up on estate law, would it be wise to represent myself should they continue to stall me.

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    Replies
    1. Something certainly has to be done, since you are right that your inheritance is being wasted. In my view, two things need to happen: 1) the executor needs to be removed from the estate, along with his buddy, and 2) the executor needs to be forced by a judge to account for what he has done with the estate.

      This is a tough thing to do without a lawyer simply because the rules and processes are detailed and not always user-friendly.

      Is there a university with a law school near you? If so, call to find out whether there is a student legal advice clinic. I worked in one of those when I was in law school. They work for free, under the supervision of their professors/lawyers. They might be able to help you. You'd still have to be on top of things simply because as students they won't have much experience, but they could certainly help you navigate the paperwork and court system.

      Lynne

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