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Tuesday, August 19, 2014

Can an executor proceed to divide household goods when one beneficiary keeps delaying?

An executor's job isn't easy at the best of times, but having a beneficiary who drags his feet doesn't help. Recently a reader wrote to me to ask about an executor's options when a beneficiary delays. Here is his note and my response:

"As a Executor, what if you give one of the beneficiaries listed in the will several chances to meet and divide household goods - and they keep stalling or changing the date or when a date is set, they don't show up. Can we proceed with distributing household goods and giving the rest to charity after giving them several opportunities?"

This is pretty typical of an estate administration, because it can be difficult to co-ordinate a number of people in a way that accommodates their work, family, and travel schedules. However, sometimes it becomes obvious that there is really only one person causing the delay. Everyone else manages to make it to the scheduled meetings, except for the same person again and again.

An executor in this position is balancing the rights and obligations of a number of parties and is going to have to exercise some judgement as he proceeds. The executor's primary obligation is to distribute the estate according to the will. That means that he must do everything that he can to ensure that the beneficiaries get what they are supposed to get from the will, even if it means setting more than one meeting.

However, the executor also has an obligation to proceed at a reasonable pace with the estate. There are other beneficiaries who have a right to expect a timely distribution of the estate. The beneficiaries should also be able to expect the common courtesy from each other not to hold the entire estate hostage, though common courtesy tends to be rare these days.

The executor is going to have to take control of the situation. You stated that  numerous opportunities have already been given, so let's proceed on that basis. The executor should consider setting one last meeting date, and notifying all of the beneficiaries well in advance that the division of household goods is going forward on that date, whether or not all parties are present. I would suggest that the notification be made in writing (which includes e-mail) so that the executor has a record of his actions and words, and that it makes reference to the fact that several previous attempts were made to gather all beneficiaries together.

Anyone who finds they cannot attend on that date has the option of sending someone else in his or her place to act as a proxy. Alternatively, the person who must miss the meeting could make a written list of requests and forward it to the executor before the meeting. The executor is not bound by the requests, but if the family is using some method of choosing items that involves taking turns, the list could be used on behalf of the absent person.

Everyone who is present should proceed with the distribution, using either the method described in the will (if there is one) or the method devised by the executor, including the absent person in the best way they can. Box up the items earmarked for the absent person and let him or her know they are available to be picked up. Assuming there are items left over, the executor should email everyone and say that the leftover items will be sold or delivered to charity in 48 hours, so if anyone wants anything, they should pick it up during that 48 hours.

As always, an executor must keep meticulous records. If this issue came down to a lawsuit, it will not be much good for the executor to say that he provided the beneficiary with "a lot of" opportunities to select household goods. The executor must be able to list the dates and times in question. I also suggest that executors make a list of who took each item at the time of division. Keep in mind that there are more estate disputes over personal and household goods than there are about money, due to the emotional attachment to the items, so expect push-back from a beneficiary who is left out, even when you are being as fair as possible.

1 comment:

  1. Hello Lynne, thanks for the description of how items need to be distributed. I have a question on delivery.

    I'm a beneficiary of several items in my fathers estate and the Executor (his recent spouse) has just provided me a copy of the will and a deadline to pick up the items left for me. The will says the executor is:
    TO DELIVER to me the items left...

    As my fathers house is many hours drive away and the items left are very large I can't just pick them up. Is the "TO DELIVER" language in the Will indicating the estate must deliver to me at my home and the Executor must abide by this? Is it within my rights to expect the estate to "deliver" or "ship" me these items and stand by that expectation?

    Thanks for any advice you can give on this, I've enjoyed all the information in your posts!


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