Real Time Web Analytics

Pages

Wednesday, July 6, 2011

Can an executor be sued for secretiveness and delay?

I'd like to answer another excellent reader question today. The first thing I noticed about this question is that it starts with a complaint that the executor doesn't give any information. Executors reading this blog, take note at the number of problems that start when you hoard information! Just be transparent and a lot of these issues just don't ever arise.

Here is the reader's question:

"The executor does not give us any information about the estate of my mother, who died in 2004. He still does not want to settle the estate. He and his lawyer are saying there is an estate tax to be paid, which I believe is a capital gains tax as there are several piece of property involved. I was told that capital gains tax was paid in 2006. Now he is saying it is not. Can the beneficiaries sue the executor for lying for years?"

The fact that capital gains tax was paid in 2006 but must be paid again doesn't necessarily mean the executor is lying. Keep in mind that capital gains tax is payable each time a piece of capital property such as real estate changes hands. Back in 2006, tax was paid on transfers of the property from 2004 to 2006. If property is now changing hands - say it's being transferred to a beneficiary or being sold to an independent buyer - then there likely is additional tax because of this transaction. After all, the properties have been sitting in the name of the estate for seven years and have probably gained in value during that time.

Having said that, in my view seven years is much too long for the wind-up of an estate. Obviously I don't know all of the facts, so there could be complications that I don't know about, such as farms or businesses on the lands in question. But any executor who takes seven years (so far) with an estate without at least giving regular reports to the residuary beneficiaries is taking a huge risk.

I never understand why executors are so darn secretive. Perhaps they think that it's better to just keep their mouths shut and not invite trouble by telling others what they're doing. Unfortunately this is almost always the wrong way to go about it and they just shoot themselves in the foot.

When an executor mishandles an estate (and I don't know for sure that this one has - I'm making a general statement here) he or she can be taken to courts by the beneficiaries. It isn't really suing the executor, in the familiar sense of suing for monetary damages. The usual outcomes are that the court will force an executor to pass accounts, or will remove an executor from the job, or will force the executor to lose his or her executor's fees, or all of the above. Executors are sometimes ordered to pay the estate out of their own pockets if their behaviour has been really over the top in terms of dishonesty or mismanagement.

This executor is fortunate that he hasn't already been taken to court. There may be nothing wrong at all with the estate, but if so, he hasn't let anyone know.

58 comments:

  1. Hi:
    As a son to a deceased father in 2012 how do I get (legal) access to my father's documents if his executor (not I) is not allowing me access to them? I had asked him, the executor many times about getting my father's documents and other personal items that he had possessed and all are still in the residence of the executor.
    I reside in BC and my father died in BC in 2012.

    Thanks.

    ReplyDelete
    Replies
    1. There is nothing in law that allows a non-executor access to a deceased person's documents. Doesn't matter if he was your father.

      Lynne

      Delete
  2. Replies
    1. You're welcome. Thanks for reading :)

      Lynne

      Delete
    2. Hi Lynn! Does an executrix and her lawyer have the right use the deceased money held in trust before final passing of accounts and my signature as the beneficiary? I have proof in paper work, opposing lawyer by the way, four presently from the lawfirm representing the executrix and older sibling. It turns out, that the sale of my late mother's estate was sold without my input (Beneficiary) and or my lawyer's knowledge. Funds were taken out of the estate to credit older sibling before final passing and closing of accounts were done! Then the older sibling wrote a check to cover the funds taken out of the estate to credit the executrix,all before signatures were done in agreement by all parties involved to close the estate! My late mother resided in B.C. It has been almost 2yrs. The handling of the estate needless to say, has been very handled very unprofessionally by opposing law firm. I now have the Law Society of B.C. involved and filed a formal complaint for delay and unethical,and unprofessional handling of this estate. I have refused to sign off on anything until I know the disciplinary outcome from the LawSociety of B.C. The estate is small, so forcing of final passing of accounts through court would deplete my inheritance of which both executrix, her lawyer,and older sibling are aware of! Also, paralegal from opposing firm, acted handling estate without senior opposing lawyer's knowledge, or so he claims to date! Any advice?......

      Delete
    3. Of course the executrix and her lawyer can use estate money without the beneficiary's ok. The executrix is the one with the authority and the responsibility to pay bills, file tax returns etc. They can't possibly do all that if they need the consent of beneficiaries at every step.

      Lynne

      Delete
  3. Hello Lynn! My question is, can an executrix and sibling use monies in my late mother's estate, without my knowledge and or signature, as well as my lawyer's input, before closing the estate?.....I do have proof in emails and dates(information on accounts,sale of car,& house that clearly show house was sold to older sibling without my lawyer's knowledge passing of accounts and signatures! My mother passed in March 28th/11! The estate is in a total mess! There is a problem with the executrix and older sibling not complying with information that I have repeately asked for being the beneficiary! It has been almost 2yrs! I ended up having to file a formal complaint with the law society of B.C. as that is where the deceased resided as well as myself and executrix. I recently found out that the executrix used money from the estate to loan older sibling to purchase my late mother's home, and later credit the estate back! To date, I'm awaiting a decision as to what if any disciplinary action will commence from the Law Society of B.C. The estate is small, both executrix and older sibling are basically trying to bait me into depleating all my inheritance by forcing final passing of accounts! By the way , the executrix has gone through four lawyers from the firm currently handling the estate. Senior lawyer for executrix now on the hook for this! I have refused to sign off until I know what if any disciplinary action will follow from Law Society of B.C. ! Needless to say, "Yes" this has been a total mess as to how this is being handled thus far. Any imput, would be greately appreciated!

    ReplyDelete
    Replies
    1. If the executrix is the problem, why are you complaining to the Law Society? All they do is investigate complaints against lawyers. They can't do anything about the executrix.

      Lynne

      Delete
  4. Hi Lynn! I have complained to the Law Society, as I feel that the lawyer involved in handling the estate has breached certain ethical duties, especially where some of his staff is has been involved in handling the estate at with out a lawyer overseeing this! If I force final accounts, that depleates my inheritance! I feel that if misconduct and opposing lawyer is made to take remedial courses ,for unethical handling of this, then I'd be happy with that! My lawyer has stated that it would not be worth depleating inheritance to suit both executrix or opposing lawyer as they would want to date!

    ReplyDelete
  5. My Mother pass in in 2006. The Executor(my brother), hired the estate lawyer, transferred MY NAME WITHOUT my consent to family cabin, which puts me o the hook for the half the taxes on a cabin I can't use, and left the estae ARREARS! I then had to ASK for an acconting of theestate as the awyer e hired sent me a document to sign as beneficiary as having no further claims pr disputes beyond this time. The accounting of the estat contained only the mortage 1"mortage papers from my MOTHERS PRINCIPAL ESTATE, papers stating his 9,000 fee, and the page for me absolving him and the estate for ANY questions or accountanbility. The cost of the funeral was not even included in the accounting, nor a listing of her assets. Surely the "lawyer" MUST be aware of the final dispensation and $'s of an estate and what it must entail. I have showed this to 3 lawyers who all were astonished that a cover letter, an 1" the standard mortgage papers from her principal estate sale,my name on a title to A CABIN I CANNOT USE AND his fee would be used as a full accounting of an estate to which he decided to cgarge $9000(including his "extra services) I HAVE NOT SIGNES THE RELEASE AND HAVE NO INTENTION ON DOIND SO TILL THIS LAWYER AND THE EXECUTOR ACCOUNT FOR ALL MISSING MONIES AND ARTIFACTS. also--CAN they actually pu my name on the title to a piece of property I do not/can not share with mty brothers family, have noe access to , but am reponstible for half the faxes. The keeping of this cabin is what put my mothers estate in arrears- well that and the SHADY LAWYERS paper he wished me to sign absolving all recourse to him or the executor at ANY future time. It has been seven years. We are in MANITOBA, should THEY NOT HAVE AT least listed what was in her bank accounts, or APPROACHED me about being added to the title of the cabin and having to pay the insurance and taxes?

    ReplyDelete
    Replies
    1. Ok, take a deep breath, before you explode. Yes, they can put the cabin in your name without your consent. This was what the will instructed the executor to do, so if you're going to be angry at anyone, the proper person is your mother. She's the one who decided your name should be on it. Yes, that puts you on the hook for taxes and other things, but like I said, blame your mother for that.

      The accounting does sound pretty inadequate. Might I ask why you are asking me about it when you've already seen three lawyers? Yes, the accounting should list her accounts, the funeral expenses and every other transaction that went through the estate.

      Again, your anger is misdirected. The lawyer isn't the one who handles the estate transactions. That would be your brother, the executor. How do you expect a lawyer to send you details of bank accounts or sales or the funeral if the lawyer never had that information?

      If you don't like the accounting, and I can see why you don't, then stop schlepping it around to every lawyer in town and send a written request to the executor asking for the needed information.

      Lynne

      Delete
  6. Hi Lynne,

    We have a former executor, who has been removed due to the fact that he has taken over 10 years to probate the Estate, has defrauded the Estate (an indictable offense) of monies before Probate, allowed the Estate property to decline in value, failing to protect the assets, and just about every possible thing that can get an Executor removed.

    We've established all this and need to know what the next step is. Do we take him to court with civil litigation? Do we go to the police to charge him with fraud/theft over $10,000? Do we have to sue him? How do we take legal action against him?

    The new Executor and her lawyers aren't pressing any charges against him (most likely due to the fact that they are siblings), and isn't going after the Bank for allowing him to withdraw funds BEFORE the Will was Probated.

    Thanks

    ReplyDelete
  7. im a beneficiary of my partner estate , the executor and the estate lawyer met with me on december and they gave me a month to find way to come up with money so i can keep the house or to give them my decision to sell the house , and when i met with them i took my lawyer with me to the next meeting ,and i told them im ready to sell the house and i have a buyer , and we agreed that that the estate lawyer talk to the buyer without hiring a real agent , after afew days from the meeting i found out they hired a real agent and they listed the house in the market befor even i met them to give them my word about the house , they broke the agreement to sell the house to the buyer i have with out agent , and they lied that they list the house in the market before my meeting with them to give them my decision
    can i saw the executor and the estate lawyer for lying to me ? any help would be very appreciated

    ReplyDelete
    Replies
    1. I wish I could give you better news. I don't think you would have a reasonable chance of suing the executor for lying to you. At the end of the day, it is the executor who has the responsibility for selling the estate assets and it is up to him to decide whether or not to use a realtor, what the price should be, etc. If you had a signed agreement with the buyer, that is something you had no legal right to sign. Now, I'm not saying the executor should not have listened to you. It's possible that your arrangement would have saved the estate money, assuming that the price you had negotiated was the same or higher as the one the executor will get on the open market. If it turns out that the executor's decision not to use your buyer ends up costing the estate a bundle of money, you could sue the executor for that loss.

      Hang in there. Estates are tough.

      Lynne

      Delete
  8. Can my brother, who is executor (& beneficiary) to my mothers estate deduct personal expenses from disbursements to other beneficiaries that he has associated/assigned to my mother living in his house until her passing?

    ReplyDelete
  9. Should beneficiaries be given details of the sale of a home by the executors of an estate -- buyers names, addresses and e-mail addresses, as well as their lawyers information Beneficiaries have been informed that the house has been sold as per probate with the amount of half the home which was tenants in common and that the funds were put into a trust account as per legal advice, in case the executors have to petition the court to use it for the surviving spouses long Term Care. We have answered every question and kept them in the loop when there was something to report.

    ReplyDelete
  10. Hi the executor of my Mother's will is still holding back the last bit of the monies as she messed up from the start (2012) the we still have money coming to us. Her latest this she said is that there have been cut backs in the Government and she is still waiting to the clearance certificate,should have neen done by now but she said last May she forgot to send a copy of the will "whatever" we have received 80 thousand each so far (4 of us) I really think she playing us now and wants to hold on to the remaining founds as long as she can. It's my Aunt and there is bad blood there is only 7 thousand left for each of us,I do NOT want her getting her fee at this point, do you know if the Government would tell me her Son on the progress of this and she if he is lying. Thanks for any help you can give me.

    ReplyDelete
  11. Our father passed away June 2009. We are looking to obtainthe final accounting letter to sign off on the estate. The final tax clearance certificate came in September 2014. There was a discrepancy with funds transferred from the closing of my father's bank account to the estate account that has been resolved. There have been many emails, texts and calls to the lawyer/executive to wind up the affairs. The delay is either her personal family problems, being semi-retired, and no longer having her assistant. What steps can we take to bring this to a conclusion?

    ReplyDelete
  12. Can I sue my mother posthumously

    ReplyDelete
  13. Hi Lynne,

    My older brother acted as the executor of my father's estate and was not very forthcoming with information as well as an accounting of expenses. He also appointed himself to act as a realtor for the sale of my father's home and also paid an uncle for some repairs to wall such as plastering and sanding which in my opinion isn't exactly an arms length dealing. Are these behaviors ethical and isn't appointing yourself to act as a realtor while being the realtor without the consent of the adult beneficiaries considered a conflict of interest?

    ReplyDelete
    Replies
    1. I realize that the lack of information is frustrating and always leads to suspicion and speculation, but in this case I don't see anything that alarms me.

      The executor doesn't need the consent of the adult beneficiaries to do anything. The only exception might be the sale of real estate, but even that depends on the wording of the will. The executor is in charge and does not need anyone's permission to carry out the estate.

      I think you're saying that your brother makes his living by being a realtor. It's alright for an executor who is also a professional (e.g. lawyer, accountant, appraiser, realtor, etc) to do that job for the estate. It's also okay for him to pay himself the going rate for the work. This does not need to be an arm's length transaction. Having said that, it doesn't give him carte blanche. If he isn't qualified as a realtor he cannot pay himself to act as realtor. He cannot overpay himself. When I write wills in which the executor may do work for the estate, I always include a "professional charging" clause that clarifies it for everyone.

      In other words, it is not a problem to pay the executor to do work that the estate would have to pay a third party to do.

      Same goes for paying an uncle to do repairs. If the repairs are of the proper quality and the payment made was the going rate the estate would have had to pay a third party, it's fine for the uncle to do the work. Arm's length is not required.

      Not getting enough information from the executor is another issue altogether. Perhaps you could ask him to set up a monthly, weekly,or other time period, email update to the beneficiaries.

      I tell executors every single day that hoarding estate information leads to problems, and that's what has happened in your case, but they still behave that way.

      Lynne

      Delete
  14. Can I sue in small claims court the executrix of my mother's estate for the drop in inheritance (dollars) after changing lawyers (this is the second one) and the new lawyer will be paid at least $25,000 to push this estate through, even though the last lawyer was almost at that point in pushing it through?

    ReplyDelete
  15. Do you still take questions ?

    ReplyDelete
    Replies
    1. Of course. Ask a question by posting on any thread that does not have a warning in red that the comments section is full.

      Lynne

      Delete
    2. Lynne Butler
      Do Beneficairies have any rights? what if there are 4 beneficiaries and only 2 get info the other 2 not? what can be done?

      Delete
  16. I have documented proof that my coexecutor's p10 contains false information and refused to sign p8 .asked thelawyer she hired to get her to submit p14...was ingnored then lawyer withdrew citing me as the reason.eventually decided to transferexecutorship to BC pubic trustee.coexecuter refusing to give up executorship. Probate now stalled...what can I do?...

    ReplyDelete
  17. My uncle and family is currently being sued for mismanagement of our grandmother's estate. Firstly, my mother, brother and I had in my grandmother's will that we could live in her house after she passed. My uncle (power of attorney of estate) pressured me at her funeral to leave the premises. We naturally declined but they were relentless in trying to remove us from the house. My mother was taken to court. She won as the judge said she has in the will she can stay in the house. So my 3 uncle's and 2 aunts left the court house with their tails between their legs. This still did not stop my uncle from pressuring me to help get out of the house. I agreed to try and start looking for a place to live and while my mother was visiting me, the police came to my grandmother's house and evicted my brother who was living there as he had been labelled a "vagrant". We are suing as our lawyers say we had a life interest. We have discovered that the power of attorney of the estate (uncle) has been skimming money this whole time and possibly forged documents to have the police involved.

    ReplyDelete
    Replies
    1. Sounds like a real mess. Wouldn't it be great if people could just talk instead of using the courts and the police as hammers to hit each other with?

      Lynne

      Delete
  18. exectuor was bemificery in will recevied 1/3 of house in estate, he fixed up the house so it would sell for a higher value, the cost of fixing the house was billed to the estate, can i sue him

    ReplyDelete
    Replies
    1. Why would you want to sue him for increasing the value of an estate asset and therefore making the estate bigger?

      Lynne

      Delete
  19. my father passed summer 2016 and his spouse he was married too is the executor of the estate and me and my sister are the beneficiaries along with the same spouse and one other so my question is that my father had his personal belongings some before the spouse some after he allegedly had stated before he passed that he wanted to leave the spouse "everything" as we my sister and I were getting funds however we want a couple of items from his belongings and the spouse is being stand offish are we out of luck or would we have to go to litigation

    ReplyDelete
    Replies
    1. Not all relevant facts are included in your note and the wording of the will makes a big difference to the your rights.

      You mentioned that you are "getting funds". I assume that means the will specifically leaves you a sum of money or that it came from an insurance policy, and everything else was left to his spouse.

      If this is the case, everything else including personal items belong to the spouse. You'd have no claim to any personal items. Whether or not they were owned before his marriage to her would be irrelevant if he left everything to her.

      Things are different if you and your sister are named to receive a share of the residue of the estate, because that means that "everything" is divided among you, your sister, and the spouse. You might then be able to take a position that you should get a share of personal items.

      Without seeing the will, I don't know which case applies.

      If you have no legal right to any of the personal items, and as far as I can tell you don't, then you're out of luck. Going to litigation won't help if you don't have legal rights to back you up.

      Lynne

      Delete
    2. Thank you my sister an I are entitled to 35% each of the residue and the spouse/executor is 20% and then the other 10% is residue money only?? Also we are located in British Columbia not sure if that makes a difference lastly I have no problem.with you looking at a copy of the will as I have it if you have an email for me to send it to

      Delete
    3. GMoney,
      If you send the will to me and I provide advice about it, I will charge you for the consultation. If that's ok with you, my assistant will take your credit card number when you call. Let me know.

      Lynne

      Delete
  20. How would I go abut suing an Estate for damages to the property, which they were renting?

    ReplyDelete
  21. Lynne
    My sister and i are the sole beneficiary of our fathers estate..he passed 3 years ago...his return was filed as well as the estate return by his executor...2 years later we are still waiting on a clearance certificate...the executor cant get any answers from the accounting firm that filed...they say they are getting the run around from CRA...we dont know how to proceed as neither my sister or i are authorized to speak to revenue canada to find out whats going on...what can we do?

    ReplyDelete
    Replies
    1. Perhaps the executor should by-pass the accountant and go directly to CRA for answers. There could be more to the story such as the accountant forgot to file when first asked, or made a mistake and had to do it over. Even if there is nothing like that, the executor might at least find out what the issue is that's holding everything up.

      Lynne

      Delete
    2. Can I ,as the executor ,be sued by some of the 5 inheritors for selling a cabin and land for it's assessed value even though the timber on it is worth considerably more? Our initial decision was to keep the property for our famìlies to use. 5 years later no one has used it.About 4-5 times yearly I go check on the place ,I'm 5 hours away,and when my brother is out from back east he helps out.
      My deceased uncle's will just stated the estate was to be split among the five inheritors.He spoke
      numerous times on his deathbed of his disgust with modern logging practices and his wish that his property be left in it's natural state.This was heard by myself and my father.
      One inheritor ,out of her own pocket, had the timber value determined. I want to sell it ,with a covenant that stays with property that states the allowable tree removal allowed.
      The cabin is deteriating and the 2 inheritors who live within 5 kms don't check on it. The potential buyers state their desire to live there in it's present state. I believe them as they spent many hours wandering around the property showing it to kid and grandkids.
      I did not inform any of the other inheritors,other than my brother, of my intentions to sell as I was so upset of the lack attention shown by the 2 locals. Neither one walked in over the fall, winter, and spring to check for leaks fallen trees or vandalism. I know this as fact as I put a strip of clear tape from the door to the jamb. If th cabin was entered it would have broke. It was intact.
      I want to see someone enjoy the place in it's natural state so if I can be sued it will just remain sitting there.
      Thanks for any information you can pass along.

      Delete
    3. There are lots of things to say about this so I'll just give the headlines.

      Yes, any executor can be sued for selling a property for less than it could fetch on the open market. A verbal expression of wishes, while morally compelling, is unlikely to help you legally.

      You can also be sued for just letting it "remain sitting there". The beneficiaries are entitled to receive a share of the estate and it sounds as if at least one of them wants that to happen. If you simply let the asset sit there and deteriorate, you are causing them a financial loss for which you can be sued.

      Doing nothing is rarely a good choice for an executor.

      If you want to sell the property to the buyers who will keep it intact, consider asking a judge for what we usually call "advice and direction". All executors are entitled to go to a judge in open court and lay out the issue and ask for direction. This way, you can't get into trouble later because the person valuating the lumber will get a chance to have her say when you go in front of the judge. I don't know potential values etc but it's an idea you might think about.

      Don't let your own wishes get in the way. Whether you want to see someone enjoy the place in its natural state is 100% irrelevant.

      Lynne

      Delete
    4. Thank you Lynne.
      The will has been probated, and the cash and money for the equipment which was sold, has been distributed.The property and cabin, which was the deceaseds principal residence, are all that remain of the estate.
      Until I mentioned selling it it just sat there.

      Delete
  22. 60 days on.
    The buyers mentioned above still wish to buy and live there.
    2 timber companies have "approached" the inheritor-cousin,not me tho, who wants to sell for maximum $. They offered $600000-$700000 supposedly.
    Strange coincidence that, as while it was being held for family use their were no overtures made.

    My question is: if I follow my moral compass and sell to the people who want to leave the property intact for $312000 can I be sued for my out of estate assets or just my share of the inheritance.
    Thank you for your guidance.

    ReplyDelete
  23. Hi Lynn, I have a question and am hoping u can help. My late father in law left my husband all rrsp, rifs, and pension funds. Along with special bequests of a farm and vechicles and a holiday home. My husband is not the executor. My late father in laws common law is the executor. She is acting in an unjust way- sold stuff and now searching how to cash out rrsp and other bank accounts. Se has her own kids and her own agenda. My husband is torn about this. After the will states the special beaquear The will then goes on states if my spouse survives for for 30 day clause they have access to all personal property vechicles etc..... I’m wonder if we go to court how are special bequests looked at- he obviously wanted my husband to have some very key and important stuff because he put on the beaqueata and rrsp clause.

    ReplyDelete
    Replies
    1. If the RRSPs, RRIFs, and pension funds were left to your husband, they are not part of the estate and do not pass through the executor's hands. Why is she even touching those?

      I find it odd that your FIL had a common law spouse who was not the beneficiary of his pensi
      on. However I don't know the details so I won't try to get into that.

      If your husband wants to honour his father's wishes and the executor won't do so, your husband must use the courts to enforce the will and his rights as a beneficiary.

      I have to be honest, I don't really understand your question about how special bequests are looked at. Why would they be treated any differently than the bequests in any other will? It doesn't matter what the gift is; the beneficiary has the right to receive what he's given under the will unless the gift is needed to pay debts of the estate.

      Lynne

      Delete
  24. do beneficiaries have any rights? if 4 beneficiaries why is only 2 get info and not the other 2? Is it ok that executor and 2 beneficiaries sold/thrown out/gave away/took everything but left nothing for 2 beneficiaries? What can be done?

    ReplyDelete
    Replies
    1. Yes, beneficiaries have rights. As a general rule, beneficiaries have the right to equal treatment by the executor.

      To know what your rights are, you must first understand whether you are all equal beneficiaries under the will. Only residuary beneficiaries are entitled to full information; specific beneficiaries are not.

      The executor is the one who has the authority to decide that things can be sold or thrown away. The executor also oversees the distribution of the household items, but it must be done according to the will. If the household contents were left to 4 people, all 4 should have had equal chance to access and choose from the items.

      If this has not happened, and you are sure that you are entitled to a share of the household items, you need to make your concern known to the executor (not the other beneficiaries because they aren't in charge of it). If the matter cannot be corrected or the executor won't correct it, then the only thing you can do is hire a lawyer. The lawyer will attempt to negotiate a fair distribution of the items. If that doesn't work, you will end up in court trying to remove the executor, or to compel a different distribution, or for other orders that might address the situation.

      This estate isn't off to a good start. I wish you the best of luck with it.

      Lynne

      Delete
  25. My dad passed April 29 2019. The executor is refusing to hand over any accounting. My 3 sons and I r beneficiaries. I have asked the executor several times. He has also dispensed my sons inheritance of 10,000 to him at the age of 19 when my dad clearly states in his will at the age of 21. The executor has also put all his duties on to a lawyer to handle. I believe hes not handing over accounting because hes paying the lawyer for his executor duties out of the estate. I have recieved my inheritance yet and want to take action. Where do I start the process court wise. I have already asked for passing of accounts many times.

    ReplyDelete
    Replies
    1. It has only been 5 months since your Dad passed, so it seems as though this estate is moving along really quickly. Perhaps the executor isn't providing an accounting because he is planning to give one at the end when all of his work is done. I suggest this simply because that's what a lot of executors say to me when I ask about accounts.

      You didn't say whether you are a residuary beneficiary or whether, like your son, you are the beneficiary of a specific gift. If you are a specific beneficiary, you are not entitled to a full accounting so there is no point taking this further. If you are a residuary beneficiary, that's a different matter.

      As a residuary beneficiary, you are entitled to receive an accounting at any time upon request, which you have done. The executor may wish to wait until the end of the estate but you do not necessarily have to agree with that.

      To begin a lawsuit, you will have to file documents at the court to ask the court to compel the executor to present his accounts. I would suggest that you use a lawyer for this to ensure that you get into the right court, with the right document, and ask for the right thing. I am working on a case right now with a self-represented litigant and I spend more time un-doing her wrong actions than I do moving the case forward.

      Lynne

      Delete
  26. Residual beneficiaries are entitled to a full accounting, but what if someone is a specific beneficiary and what they receive is reduced by estate debts. Are they allowed to request details?

    ReplyDelete
    Replies
    1. I can't cite any case law on this, but my experience tells me that yes, they can. If they are not getting what the will says they are to get, then they should have a full explanation. The explanation should not just show the debts, but show that the residue was completely consumed, and that all specific gifts were proportionately reduced.

      Lynne

      Delete
  27. Hi Lynne
    My close friend passed away in November 2018. I received a copy of her will, this week, by registered mail from a lawyer. It states that the will is going to probate court.
    Terms of the will seem pretty straight forward. A specific amount of money is to go to me. The balance of the estate split between her two sons. The eldest son named as Executor.
    I am a little dubious about the Executors intentions. Firstly, because we spent a lot of time together for over a month following my friends death, yet no mention was made that I was named in the will. Secondly, he has filed bankruptcy twice in the past.
    My question is, would it be advisable, and do I have the right, to place a lien against the house. I suspect that they are finally probating the will, as they want to sell the house.

    ReplyDelete
    Replies
    1. Hi Curious,
      I get plenty of questions from people who don't trust executors who say someone is not a beneficiary. This may be the first time someone has said they don't trust the executor because they were told they ARE a beneficiary.

      I may be missing your point, but how does being told you're a beneficiary, while being given a copy of the will that backs up that statement, cause you to be dubious about the executor's intentions? I don't find it unusual at all that the executor kept his mouth shut about the will until he had determined he had the right will, and had hired a lawyer to deal with it.

      Your second point, that being concern about bankruptcies, is for sure concerning. I always cringe when I see people name their kids as executor when the kids are so very obviously unsuited to the job.

      I'm not going to advise you as to whether or not it's a good idea to place a lien against the house. I simply do not know enough details to give you reliable advice. My job here on this blog is to talk about how the rules work.

      My first thought about placing a lien is that you don't have a judgment from a court. Normally that is required first before you can place a lien on property because a lien is a collections process.

      My second thought is that placing a lien seems to be an over-reaction to the situation. It makes sense that they would sell the house; it happens in every estate. You haven't given the executor the chance to pay you.

      My next thought is that it would be improper for a beneficiary to ensure payment by placing a lien. I can't quote you a specific case on this, but to me it goes against general principles of estate law. When the executor sells that house, his first duty is to pay the bills, expenses, and taxes. The beneficiaries only get paid if there is enough left over after that. So placing a lien seems to be a way of trying to jump the queue and get ahead of creditors. I think it would annoy the living hell out of a judge if you did it.

      Lynne

      Delete
  28. Hi
    My brother in law is the excutor of my father in laws estate.
    He refuses to give share of my husband by any form.my husband tried a lot to convince him that he needs the money.but he keeps refusing saying that their father told him verbally not to give you any money to buy a property for us as family.
    In the will.my late father in law never mentioned withhold inheritance of any of the heirs except for ones below 18.and my husband is 46.

    When my husband asks his brother to give even a portion of the share.his brother start putting conditions that if my husband wants money he has to let go somthing else.he always want force my husband sign papers that Go against the will.
    Is this allowed to be done by excutors?
    I feel the guy is stealing frankly.because he is not following at all and he is dragging this matter 4 years now .he also called my sister in law and told her he wants to pass one estate property to his kids as excutor is one of the heirs too.
    But is it allowed for him to choose any portion and pass it like that just because he is on title as his dad trusted him before death.but money by which property was bought is never earned by excutor?

    Please help

    ReplyDelete
    Replies
    1. No, none of the things the executor is doing is legal. He has to do what's in the will. Also, taking 4 years to do it is unreasonable unless there is something very unusual going on, such as a court challenge.

      Verbal instructions to an executor are completely useless. Only the will counts.

      If your husband wants to get his inheritance before it's all stolen, I suggest he should get a lawyer who will enforce the will by way of the courts. There is no way to MAKE an executor do the estate properly other than to use the courts. I agree when you say he feels powerful. These little Napoleon executors are a scourge upon the earth, as they say.

      Lynne

      Delete
  29. Excutor of my late father in law is a beneficiary too.
    He has been refusing to share inehritance the way stated in the will
    He puts conditions on my husband each time he asks for his share..he asks him sign documents that let go share in different estate.when my husband refuses.the excutor refuses to give the inheritance share.
    He has caused a lot of losses to heirs money till now thru mismanagment.as hr feels powerful.
    What shall we do?
    Please help

    ReplyDelete
  30. My brother is one of 4 executors for our parent's estate. He owes the estate a fair chunk of money through a promissory note he signed but is refusing to acknowledge or pay back the money he borrowed. Can the remaining 3 executors sue him on behalf of the estate to get the money back?

    ReplyDelete
  31. I have been on both sides of this equation. I can give you some insight into why myself as an executrix have stopped communicating except when absolutely necessary with the beneficiaries. Right from the start very open and honest with the beneficiaries, which became extremely abusive right away. If I provided them any info like the mortgage amounts or info, one beneficiary advised me that I stole the building and mortgaged it against them, 2 weeks after the passing. Then the abusive behavior of them continued and still continues to this day. Three years later. I stopped really communicate any info with them when one of the beneficiaries went into the commercial business building that has been up for sale, and tried to raise everyone's rent and demand they stop paying the estate, they owed them. At the same time the other beneficiary was sending family members to me at my place of employment demanding I pay out the beneficiaries there share of the rent that each of the properties generate each month, and they informed me the beneficiaries demand I pay the mortgages on the properties since they advised their relatives I put them on there illegally. These people are band by my employer for this. They were both give all documents when it went to probate 5 weeks after their mother's passing. They have done numerous things that interfered with tenants in the building, etc. There mother choose that everything gets sold.....all that they get as beneficiaries is the monies after all expenses, bill, taxes etc are paid. Before her passing she was very clear about this. She stated if all they wanted when she was alive from her was money then if there is any left that is all they will get when she passed. So now, as I sit here you advising that we should communitcate more clearly, all I can do is laugh, because it means more creative abuse coming my way.----- I have just been rudely advised again tonight by one of the relatives that when either building sells if it does not sell for the price the beneficiaries dictate they will sue me for losing funds, along with the mortgages that need to be paid out.
    So I just move on my day, try to ignore and I have stopped communicating because no where in the job description of executrix does it state verbal punching bag to a bunch of over the top beneficiaries. the want funds but do not want the burden of bills or taxes.
    I know why she asked me to do this for her..... I was honored, and she did inform me how over the top they could be----- just being polite------ I did not understand how they can manipulate other members of their family to participate in this..... no gain for them because they are not the beneficiaries..... the estate lawyer I have hired to help me out is in shock most times of how over the top they are. This is occurring in Alberta

    ReplyDelete
    Replies
    1. Wow. You are really having a tough time. You are right that sometimes the executor is doing his or her best and it's the beneficiaries who are making life difficult. I certainly didn't mean to imply that executors are always the ones in the wrong. Some people are just nasty whether they are executors, beneficiaries, or just family members who want to control things.

      Lynne

      Delete
  32. Hello
    My father-in-law passed away in 2014. Back in 1967 he left Alberta with his son (my now husband) his girlfriend and her 2 sons. With no money to speak of, my grandparents bought a house for everyone to live in upon arriving in Ontario. The house was sold for $2.00 to my father-in-law from my grandparents. Years later, my father-in-law married the girlfriend and adopted one of her sons. (The other son died in an accident) Years later, my father-in-laws mom died and he used her estate money to add an art studio to the house for his wife. In 2014 my father-in-law died. His wife promised my husband(who is son of her husband) that when she sells the house, she will put the funds in a separate trust fund so the funds don't get mixed with other funds. At the time, she was about to remarry and move on. Since then, her next husband has died and friends of her last husband moved in with her (living there for 6 yrs rent free)and have brainwashed on many things. They've convinced her to give them Power of Attorney, to transfer money to them and to come between her and her own son. They've convinced my mother-in-law to say they can continue to live there after she dies until they sell the house. They moved in after her next husband died because they told my mother-in-law that they were building their dream home and only needed to stay with her till it was done. They were friends of her husband and her husband asked them to look after his wife when he died. Why they had to move in is beyond me as my mother-in-law is self sufficient. But over the yrs, she has been manipulated by these freeloaders. The call themselves her family! They invite their family to the house but never my husband. Her son, sees the Sr's manipulation these people have done over the yrs. He's see the money being transferred out of his mom's bank acct to these people. These people have brainwashed her enough to exclude her husband's son out of the will and she's threatened her son that she will do the same to him if he doesn't stop asking about her finances. I have a feeling these people have convinced her to forget about her previous husband's son too, the one who she promised she'd set the funds aside in trust from the sale of the house which was purchased from funds from his grandparents! Does my husband have any grounds to contest the will if he's not named a beneficiary or left the funds from the sale of the house his Dad was given by his grandparents?

    ReplyDelete

You might also like

Related Posts with Thumbnails