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View Full Version : How much power does an executor of a will have?



HETHERWCG84
Aug 20, 2010, 08:55 PM
One son is executor of the will and both son's are beneficiaries and the will says that all assets must be divided evenly. Our family (the care takers/not the executor) believe that the executor is abusing his position. He has denied the other beneficiary copies of the death certificate, has moved the estate (over 100k) from 3 bank accounts into his own personal bank account and is dening access of the funds to the other beneficiary. There is still a home that needs to be sold, can the executor wait until the home is sold to divide the funds in the estate? What if the estate is deminished by this point? Also with the other assets that he has to divide evenly (such as guns, collectible coins, items in the home) "he" (the executor) gets to decide what is "even", correct? When the father passed away he was living with the other son, who he gave a gift to of 15000 to purchase a car for taking care of both parents, (this was 6 months prior to death) can the executor bring this up when dividing the estate? There is also jewelry that is "missing" from when the wife passed that is mentioned in the will (this jewelry was suppose to be in the safety deposit box of this "trustworthy executor") can that be accounted for or if the executor states its "lost" are we just out that jewelry? If the executor is stealing money from the estate what do we need to do from this point? And last but not least, Why does the parent always trust the wrong child :(

ScottGem
Aug 21, 2010, 03:52 AM
First, has the will been probated? It is definitely outside the fiduciary responsibility of the executor to move funds into his personal accounts. The executor has power to move the funds as he wants, but must keep them separate. The executor is required to be able to present a full accounting of what he has done with any estate assets.

Yes, the executor does have the right to determine what is an even distribution. But the heirs can demand that professional appraisals be done. Of course those appraisals come out of estate assets. And yes the executor can wait until the house is sold to distribute the estate.

If any of the heirs believe the executor is improperly administrating the estate, they have to go to the probate court and petition the court to have the executor account for his actions. The court would have the power to appoint a new executor. Generally this would be a 3rd party who would take their fees from the estate.

HETHERWCG84
Aug 21, 2010, 05:20 AM
Would petitioning to the court to have a new executor established cost the estate anything besides paying the 3rd party (do you mean an attorney?)? At this point i think we are willing to pay what ever it takes out of the estate to just so that the untrustworthy executor gets nothing! Our family was the caretaker of both parents while the executor did nothing, not even visited! But he was johnny on the spot when my grandfather died! You answered many of my questions thank you, but this was not answered... "When the father passed away he was living with the other son, who he gave a gift to of 15000 to purchase a car for taking care of both parents, (this was 6 months prior to death) can the executor bring this up when dividing the estate?"

HETHERWCG84
Aug 21, 2010, 05:21 AM
Yes the will has been probated!

ScottGem
Aug 21, 2010, 06:34 AM
Sorry, if the $15K was truly a gift with no strings attached, then it is not a part of the estate. The executor could argue that it was a loan and needs to be paid back.

I would NOT, at least initially petition for the removal of the executor. I would petition the probate court to force an accounting of what the executor has done so far. If he is not able to produce such an accounting or the accounting shows malfeasance, then you can proceed to have him removed. Any costs involved in defending his actions could be charged to the estate. However, if malfeasance is proven, the court could order him to reimburse the estate.

You probably will not be able to take the executor's share of the inheritance away. But he might be required to reimburse the estate for any losses due to his malfeasance. If he cannot, the amount might be taken from his share of the estate. But netted out. For example, if the estate is valued at $100K, and it was determined that he lost $20K, then that $20K would be subtracted from his share and added back to the amount to be divided. So each heir gets $50K, but $20K of his share goes back to the estate and is then divvied up so the net effect is he gets $40K and the other heir gets $60K.

Such things are within the power of the probate court to order. I would advise contacting an estates attorney who can better judge from the details what your best course of action is.

AK lawyer
Aug 21, 2010, 07:25 AM
... the will says that all assets must be divided evenly. ... Also with the other assets that he has to divide evenly (such as guns, collectible coins, items in the home) "he" (the executor) gets to decide what is "even", correct?
What is normal is that everything is sold and the proceeds are divided. If it's a properly conducted sale, that will set the value of each item, and consequently the amount of the fund to be divided.



... He has denied the other beneficiary copies of the death certificate, ... I don't know what the other beneficiary (devisee, actually) needs a death certificate for, but in any event, normally as next-of-kin he can get one directly from the authority who issues death certificates.



... is dening access of the funds to the other beneficiary. There is still a home that needs to be sold, can the executor wait until the home is sold to divide the funds in the estate? ...
The executor normally isn't required to distribute the estate until he is done.


...There is also jewelry that is "missing" from when the wife passed that is mentioned in the will (this jewelry was suppose to be in the safety deposit box of this "trustworthy executor") can that be accounted for or if the executor states its "lost" are we just out that jewelry? If the executor is stealing money from the estate what do we need to do from this point? ...(
Did this jewelry belong to the husband? You mention a "wife", but I assume the estate we are talking about is that of the husband. Which spouse died first? Did each of them leave a will and have both wills been admitted to probate? If the jewelry was the wife's, it may be part of her estate, not the husband's.

HETHERWCG84
Aug 21, 2010, 07:56 AM
There was a wife who past first in 2007 and the husband passed this yr. There was only one will, which is now being "executed" (ha)! The executor confuses being an executor and a beneficiary! The other beneficiary would like a death certificate in order to cash bonds that the executor is holding (which he also won't hand over/bc I'm assuming he can cash them himself due to having both death cert)! How long can the executor drag this mess out?

AK lawyer
Aug 21, 2010, 10:23 AM
If the executor has possession of the bonds, how would the other "beneficiary" expect to cash them even if he did have the death certificate (which, as I said before, he can probably get directly)?

HETHERWCG84
Aug 21, 2010, 10:34 AM
The bonds are "suppose" to be handed over and have the beneficaries name on them, can't the executor cash them even if his name isn't on there because he has the death cert of the parents which names where on the bonds as well? Also, one other question that just came up, the executor is now saying he will divy out "some" of the money, we should not accept that money right? It needs to be cashed in and divided once EVERYTHING is settled, correct? Could that be us accepting that amount? This guy is ridiculous! I would rather wash the money down the drain then him have it!

HETHERWCG84
Aug 21, 2010, 10:39 AM
This is the grandaughter, I have nothing to gain, just sick of the stress he is causing my father, who took care of both of his parents and did it with out taking a dime (except for the gift of a car) and incurring all the expenses (that wasn't even taken out of the estate because the parents had the money in the hands of the executor)!

HETHERWCG84
Aug 21, 2010, 10:40 AM
Lord help me not to raise any children with this coldness and disrespect!

JudyKayTee
Aug 21, 2010, 10:46 AM
Money does strange things to people. The Lord has little to do with it.

And one thing I will add - it is not necessarily a given that all heirs can get copies of the Death Certificate. That is NOT the case in NY (just for info).

HETHERWCG84
Aug 21, 2010, 10:47 AM
I am in GA

HETHERWCG84
Aug 21, 2010, 10:49 AM
And yes money does disgusting things to good people I suppose! I have even had to stop myself, because I feel like this man is bringing out the worst in me...

AK lawyer
Aug 21, 2010, 12:01 PM
... Also, one other question that just came up, the executor is now saying he will divy out "some" of the money, we should not accept that money right? It needs to be cashed in and divided once EVERYTHING is settled, correct? Could that be us accepting that amount? ...

No. Old wives' tales usually having to do with "accord and satisfaction (http://en.wikipedia.org/wiki/Accord_and_satisfaction)". Take what he gives you and at the same time make it clear that you expect the rest.

AK lawyer
Aug 21, 2010, 12:08 PM
...
And one thing I will add - it is not necessarily a given that all heirs can get copies of the Death Certificate. That is NOT the case in NY (just for info).

At the risk of going off on a tangent, I didn't say heirs (or in this case devisees) but "next-of-kin": to wit: the children. But, as you say, who is entitled to a DC depends on local (state) law. NY doesn't allow adult children the right to a DC?

But it appears to be tangential because OP has never coherently explained how he expects to get the bonds to try to cash them.

ScottGem
Aug 21, 2010, 02:39 PM
First, bonds do not generally have a beneficiary. They might have a surviving joint owner, but not a beneficiary. If there are any assets that do have a beneficiary they pass to the beneficiary outside the estate. Therefore, the executor could not cash them without showing that the beneficiary is deceased.

Second, I agree with AK that there is no reason the need the death certificate, but, if it was needed, the next of kin should be able to get one directly.

Like I said, you need to go to probate court to request an accounting of all assets.

And yes, you can accept a partial distribution as long as its made clear it's a partial distribution. This goes along with getting an accounting.