Legal Question in Wills and Trusts in Florida
Executor has done nothing for 8 months - worried, help please
My Great Aunt who lived in Clearwater, Florida died in Dec 2003. No other relatives live in the US. The rest of her family are all UK based, including her sister (My Grandmother), her most direct relative.
She has put her personal banker (who dealt wth all of her stock movements, and financial arrangements) as the executor to her will.
After all of this time the will has still not been lodged at the county courthouse (I have had somebody check this out for me), and calls to the executor are met with ''I haven't had time to sort this out, stop bothering me''.
We are worried that as my Great Aunts personal banker, the executor is syphoning off my Great Aunts considerable assets, and covering her trail, so that when things finally make it to the probate court, there will be a considerable reduction in her assets, for the people mentioned in her will (My Grandmother, my mother and a couple of other relatives and friends).
We also have not seen a copy of the will, and cannot get hold of a copy, and we are aware that my Great Aunts house and car have already been sold.
What can we do to get this stuation moving and find out just what is going on ?
Can we get the executor removed and act as executors ourselves ? Help please.
2 Answers from Attorneys
Re: Executor has done nothing for 8 months - worried, help please
You need legal representation. Court proceedings to compel, production of will, probate and accounting of assets are just 3 matters to cover. The assets may be being used up.
Re: Executor has done nothing for 8 months - worried, help please
DISCLAIMER: Not legal advice. No attorney- client relationship is formed hereby. No confidentiality attaches to said communications.
You are advised to seek advice from qualified local counsel. -- END DISCLAIMER
That being said, it sounds as though the executor may be flirting with something called breach of his fiduciary duty. Normally what must be done is that the assets of the estate are collected ("marshalled") by inventory, the Will is admitted to probate and the assets disbursed to the beneficiaries as closely to the Will as the law and circumstances will allow. The law provides that an Executor / Personal Representative may be removed upon petition of the Will beneficiairies, a replacement (or replacements) named, a demand for an inventory and then a surcharge made for "waste" committed against the *res* (latin for "stuff") comprising the estate.
A surcharge involves refunding all those assets which have been wrongfully spent if they can be traced, usually at a premium or penalty. This process is called 'disgorgement.'
This particular case will also involve questions of international law and it will be very likely that this will involve Federal versus state court.
Will regard to costs, most attorneys will ask for a certain amount up front to take on such an action, as well as a certain minimum percentage of the estate itself.
Good luck to you.
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