Legal Question in Wills and Trusts in New Jersey
Uncooperative co-executrix
In May 2001, my father executed a new will naming my sister and I as co-executrixes and as co-trustees for a testamentary trust to care for our mother (my parents were married for 55 yrs). My father also gave her a durable POA at this time. My father died in Mar 2004. My sister refused to sign the probate papers and has supplied evidence that, beginning in Dec 2001, her name was added to bank accounts and investments as a joint owner and POD and TOD beneficiary. She will not talk to me or our siblings. I feel she exerted undue influence on my father, who suffered multiple health problems, as my sister was also my father's primary caregiver. My mother's name was removed from these accounts. Due to the changes made in my father's accounts, his will cannot be carried out. I have asked her repeatedly for an accounting of how she managed my father's money since 2001; she said it was none of my business and I have no right to ask. I did retain the services of an attorney. But what I want to know is this: will my sister have to provide an accounting of my father's assets and her management of them to me as a co-executrix?
3 Answers from Attorneys
Re: Uncooperative co-executrix
You do not indicate for what purpose you retained your attorney. If it was to represent you in your capacity as co-executrix of your father's estate, then I question why you have not discussed this with him/her; or if you have, why you have not received a satisfactory response.
In any event, you do not mention whether a probate proceeding has been initiated. As co-executrix, and as an "interested party" in any case, it should be within your power to initiate probate proceedings in the appropriate county. If you have hired an attorney for this purpose, that attorney can assist you. (If not, please contact me immediately to discuss retaining my services.)
Once a probate proceeding is initiated--or if one is already pending--you can take the steps needed to demand an accounting take place for the assets of your father's estate.
Your sister, as a co-executrix, has what is called a "fiduciary duty" to your father's estate. This means, in essence, that she is obligated to handle the financial dealings with impeccable honesty. She is not permitted to simply give you the cold shoulder, although unfortunately, this type of dispute among adult siblings after the death of a parent is not uncommon.
If your sister is unwilling to provide an accounting, or the accounting provided is inadequate, then you can petition the appropriate court to compel a proper accounting. If the evidence shows your sister to have improperly handled the estate, she can be removed as executrix, and in fact if she acted in a negligent or fraudulent fashion, may be compelled to reimburse the estate for any funds improperly distributed.
There may also be an issue concerning whether your sister improperly disbursed funds meant for your mother, either before or after your father's death.
Does your mother have anyone such as an attorney representing her interests in this matter? If not, she should.
I strongly recommend that you consult with an attorney immediately so that you can explore your legal rights, obligations, and options. If you wish to discuss retaining my services, contact me at:
(973)-605-8995
[Disclaimer: The above comments are not intended as nor should they be relied upon as "legal advice", which can only be obtained by personal consultation with a retained attorney; at which time the specific facts and circumstances of your case can be thoroughly evaluated. This reply is provided for general informational and educational purposes only, and does not create an attorney-client relationship with the responding attorney.]
Re: Uncooperative co-executrix
I agree with Mr. Albin's response.
In addition, you have the right to question what appears to be improper re-titling of your fathers assets into joint names or POD type accounts with your sister. Unfortunately, this is a very common problem and an abuse of the authority granted under your father's power of attorney. It's important to take action now to protect these accounts before your sister takes control of them (and transfers or spends the assets meant for the estate).
Re: Uncooperative co-executrix
I concur with Alan and Jon. It is imperitive that you both file the Will for probate and start a suit against your sister, both as executrix and individually (your siblings and mother should join the suit), not only for an accounting, but for a temporary restraining order on her use or disposition of the funds she reregistered under the POA. Your claim will include breach of fiduciary duty as POA, undue influence on your father, for an accounting, for restoration of any funds not used directly for your father, to have access to all accounts (originally, as re-registered and to any new accounts which replaced the originals and into which your sister may have placed the funds), and to have her position as co-executrix denied on the basis of her actions, plus ask for legal fees and costs. It is unfortunate that certain people abuse the powers given to them. If your mother and siblings do not want to join you, do it anyway. Your legal fees and costs, if not charged to your sister, should be reimbursed from any recovery you get for other family members.
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