From Our “Ask a Question,” Mailbag: “My mother died last year, and my sister became the executor of her estate. Things started well, but then she stopped communicating with our family. She has sold the house, liquidated accounts, but we have no idea about what she has done with the money. What can we do? What are the options when an Executor is Not Communicating With Beneficiaries?”
Estate Planning Lawyer, Peter Klenk
Executor Not Communicating With Beneficiaries?
As the beneficiary of an estate, you may feel like you have no power. The executor has the right to secure assets and doesn’t have to respond to your questions. But, you do have rights.
The executor has a fiduciary obligation to you. All actions taken are supposed to benefit the estate and the eventual beneficiaries of the estate. If the executor acts in a way that damages you, then the executor can be liable.
For more information, see my article on Breach of Fiduciary Duty.
But to right any wrong the executor may have done, you must bring the matter to court. You can’t make the executor turn over information. But the judge can.
Formal Accountings, Bringing Matters to an End.
As a beneficiary, you have the right to have your Estate Litigation attorney file a petition for a Formal Accounting. The executor is a fiduciary and is bound by law to respond. The executor must submit a report to the judge, explaining every financial action taken and supporting data in specific formate. This way, you can find out what the executor has done.
What if you Disagree With What the Executor has Done?
If you have no objections after reviewing the accounting, the estate can be brought to an end. But, if you find out that the executor has done something wrong, you can object. Your estate litigation attorney files Objections to the Formal Accounting with the judge. The judge then holds a hearing to set up discovery. Obtaining discovery powers is essential. It would be best to have these powers as you have no legal right to obtain documents or depose witnesses without discovery. The executor is unlikely to volunteer incriminating evidence. With the evidentiary discovery, you can compel the release.
With judge authorized discovery, your estate litigation attorney can subpoena documents, bank records, tax records and compel witnesses to speak. Using these powers, your lawyer assembles the case for the judge.
For more detailed information, please see my article on Formal Accountings.
What if the Executor Refuses to Address Your Objection?
The judge is not a detective. All evidence must be brought to the judge using the court’s formate. The rules of evidence apply, so it is vital to have an experienced Estate Litigation attorney.
If we cannot settle the disagreements, the judge holds a hearing. At the hearing, the judge listens to both sides, then decides.
For example, let’s say your sister, the executor, used estate funds to pay her own mortgage. We would use the subpoenaed documents to prove what she did and then ask the judge to surcharge her for the damage. Once the judge has heard the evidence, the judge will rule one way or the other.
Can I Make The Executor Pay for my Legal Fees?
Though you may wish to shift the cost to the executor, the likely answer is no. You are viewed as a claimant for the estate, asking for funds. You may get them, but the costs involved are going to be yours.
In Conclusion: Executor Not Communicating With Beneficiaries?
I hope you found helpful this short article responding to what to do when the Executor Not Communicating With Beneficiaries. I have also included some links for more detailed information. If you would like to know more, or have an estate that needs our help, contact us. Let our Probate and Estate Litigation lawyers help walk you through what can be a confusing process. In fact, feel free to contact our office for a free consultation.
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