Legal Question in Wills and Trusts in New Jersey

Executor Competance and Responsibility

My parents both died on the same day in dec 2003.My brother is executor and had a real estate license(now expired).He went to an estate attorney to handle said estate. Parents house was privately advertised and contracted, but fell through because buyer did not his sell house in time. Executor then lists house with real estate broker without excluding the buyers that were contracted previously. These same buyers sell their house, contract and purchase my parents house through realtor. Real estate commission paid of $26,000 because the listing agreement did not exclude previouly contracted buyers. Both the executor and/or the attorney should be liable for the r/e commission as they were derilict in their duties. Is there any NJ caselaw where this issue has been decided and/or do you feel that I have a strong case as an heir to contest paying any r/e commission? Thank you so much for your help!


Asked on 2/07/05, 10:56 pm

2 Answers from Attorneys
Jonathan Chester The Law Office of Jonathan S. Chester, Esq., LLC

Re: Executor Competance and Responsibility

For what it's worth, my advice is that you may be better off 'letting it go' and finalizing the two estates. Your legal fees in fighting this may exceed your share of the $26,000 commission.

Also, while you want to surcharge the executor for paying the commission now, were you going to give the executor a 'bonus' for selling the house without a $26,000 commission on the first deal? I doubt it.

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Answered on 2/08/05, 9:14 am
Walter LeVine Walter D. LeVine, Esq.

Re: Executor Competance and Responsibility

Tough call. While it may have been negligent not to have excluded pre-existing potential buyers, and you might be able to make a valid claim, presuming the same attorney was involved or the real estate attorney knew of the prior deal, or that the executor was remiss in not excluding the original buyer, the costs, time involved and possibility that the Court might not award anything, may make pursuing the claim not worthwhile. How much time was there between the original deal and the new deal? More important to the issue and your consideration is information you have not provided. As a licensed broker, did your brother share in the commission? As executor, did he take executor commissions which he is allowed to by law unless the Will said otherwise? If he waived these commissions, to which he was entitled, they almost equal what was paid on the sale. What is the value to you of family harmony? These last questions should be considered by you in thinking of making a claim. I did not see any cases in NJ on this issue, making a quick research of the issue.

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Answered on 2/08/05, 12:29 pm


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