Help! The executor is stealing from the estate!

This post talks about what can happen to an executor who appears to be completely out of control. The question was sent in by a reader (thank you) about his or her particular circumstances but I believe a lot of readers out there will find the story to be a variation on their own situations:

"My grandmother died a year ago 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. My uncle often dissappears and doesn't return phone calls. 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?"

This question highlights the difference between criminal law and civil law. Although the vast majority of executors never get tangled up in criminal law, it does sometimes happen. Not as often as it should, in my view! It depends on the facts of the case. If the executor is using a deceased person's credit cards for his own personal gain and has stolen items from the estate, it sounds to me as if there is criminal activity taking place. Fraud and theft are still fraud and theft, though many executors mistakenly seem to think an estate is theirs to keep.

Fraudulent executors are pretty confident that nobody will notice what happens to estate assets, or that nobody would do anything even if they did notice. This is the crux of why so many executors steal from the very estates they are supposed to be protecting.

If you believe that fraud and/or theft have been committed, you don't have to hire a lawyer. You have to call the police. Having said that, it makes more sense if the call is made by a beneficiary of the estate rather than a family member who is not going to inherit from the estate. If the matter goes to court, the estate would be represented by the Crown Prosecutor.

When an executor misbehaves, it is most often dealt with using civil (non-criminal) law. That's because most problems with estates fall short of being outright theft. The problems tend to be things like executors who take too long, who don't look after assets and who won't tell the beneficiaries what's going on.

Proving your case can be difficult when you don't have access to documents or bank account statements. A criminal charge must be proven beyond a reasonable doubt. In a criminal case, the police or the prosecutor should be able to get whatever documents they need whether or not you personally have access to them. In a civil law case, you don't have to prove anything beyond a reasonable doubt; you have to prove your case only on the balance of probabilities (i.e. that it probably happened the way you say it did). If you can't get documents, the court may or may not order that some be given to you by the executor.

Using the civil law, a court can order, among many other things, that an executor must give a full accounting to beneficiaries or must meet certain deadlines. It can remove an executor from an estate, or can set how much of a fee (if any) the executor is going to receive.

On occasion, an executor decides to thumb his or her nose at a civil law court order, thinking that the worse that can happen is a loss of executor's fee. That's pretty foolish, as contempt of court may carry a jail sentence.

While you are certainly allowed to go to court without a lawyer for a civil law matter, it's very hard to do and you would be much better off if you had one.