Legal Question in Wills and Trusts in California
executor correct?
My father in law passed on March 2002. In his will he named myself and three other family members as having specific amounts of money of distribution.
My sister in law had herself named exac. a week before dad passed. He asked that we go along with the change to avoid any problems. He stated'' The will is air tight. She cannot mess with it''
We get very little information except that she is renting the condo, we as direct beneficiaries are going to have to pay taxes, ( something about specific accounts that have never been taxed, etc,,,,, ), and that our sister's ''special needs trust'' is being dealt with.
The former executor finds this all very strange as she said that dad specified that all taxes would be paid by the estate. When she asked this question, this gal disowned us!
Shouldn't the whole estate be put together first before any of the other things can be done? All assests, condo, real property, cars, accounts, etc?
Does this sound correct to you? I am concerned that since she shares 50/50 in the final amount,(50 to her and 50 to our sibs special trust) that something is up.
she was not upfront initially with the change in executorship nor when we ask questions about the estate.
thanks
3 Answers from Attorneys
Re: executor correct?
Is this done through a trust or a will? If it is through a will, it must be probated. Has probate been opened? If so, you may want to petition the court to have this person removed as executor, or to require that a bond be posted.
She is also required to file the certified will with the court.
Let me know if I can help.
Ken Koenen
Pleasanton, CA 94588
925-924-0100
Re: executor correct?
Was this a will or a trust? If a will, it must go through probate unless the value of the estate is less than $100,000. The executor must file the will with the court, and file a petition for probate.
Taxes are normally to be paid from the estate, which could reduce the inheritance of the beneficiaries, if there is not enough money to pay the taxes and any declared gifts.
The executor has a fiduciary duty to the estate and the beneficiaries. If she is violating that duty, she could be personally liable. You can petition the Probate Court to have her removed as executor. She should have filed for a Petition to Probate the Estate by now, and should not be taking any action until she has been appointed by the court. You should have received a notice of a hearing date.
If she has not filed such a Petition, you may want to do so yourself as an administrator.
Let me know if I can help.
Ken Koenen
Pleasanton, CA 94588
925-924-0100
Re: executor correct?
If this is a will, there should be a probate filed and you'd receive notice of it. If probate hasn't been filed, the nominated executor may be disqualified from acting as such by the court because she's waited so long and perhaps helped herself to use of the estate assets. See an attorney about what's actually happened or happening in this case, as deadlines for challenging anything may slip by otherwise.
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