Legal Question in Wills and Trusts in New York
Executrix Powers
My mother died on Jan 10th 2003 and in her will she named my daughter as Executrix. My mother left a sum of money to each grand child and left her house and car to my brother and I.
Right after my mother died the Execturix and her boyfriend gave up their appartments and moved into my mothers house and they have been living there rent free since.
My brother & I have come to an agreement on the house & car in that I will pay him half of the assessed value of the house and half the blue book value of the car.
My question is this: The Executrix says that I cannot move into my mothers house until the estate is setteled some time in November & she says that I must return my mothers car & give her the keys.
Is this right? or can my brother & I insist that her and her boyfriend move out? Can my brother & I demand some back rent be paid to the estate? Can she also demand that I give back the car?
Thank you for your help.
3 Answers from Attorneys
Re: Executrix Powers
In the absence of unusual circumstances, the real estate (house and land) passed to you and your brother on the date you mother died. A lawyer can help you with this issue.
The Executrix has no right to take possession of the house for personal purposes.
You and your brother appear to have the right to obtain immediate possesion of the house.
Re: Executrix Powers
The house passed to your brother and you upon your mother's death. Your daughter is abusing the powers of her position as Executrix. You can apply in Surrogate's Court to have her account to the heirs for her management of the estate and/or to have her removed/replaced as Executrix.
Under no circumstatnces give her the keys to the car.
Re: Executrix Powers
My condolences for the loss of your mother.
This is a difficult situation and an unhappy one. I am sorry that your daughter is behaving badly. It is clear under the law that the executrix is not performing her duities properly.
The proper legal remedy is to have her romoved as executor and (I recommend) have you and your brother appointed as joint executors. This is not a difficult action, but must meet certain legal requirements (you must fill out the correct forms). The court is called the 'Surrogates Court' and they may have someone who can assist you. If you have any questions, please feel free to contact me. I will not charge anything for a consultation (my offices are at 42 west 44th street, NY,NY. please call for an apointment first - 646-591-5786 or 718-729-2029).
There are some ugly legal issues that you may not wish to pursue - how the executrix convinced your mother to appoint her, waste of the estate, and others.
The estate (you because the house is yours) are entitled to rent for the period in which the executrix resided in the house. In addition, the executrix is monetarily liable for any household furnishings or other property disposed of to the estate (you and your brother are probably the persons to whom she must pay the money). The executrix has no right to reside in the house or possess the car pending any probate decisions. Keep the keys and make sure the car insurance is paid. While you drive the car, the insurance is your responsibility. If the car is parked somewhere and not in use, then the estate is responsible.
My best wishes for a friendly and successful disposition of this matter.
My offer stands; you are welcome to a consultation at my offices at 42 West 44th Street for no fee. Please call for an appointment first; (646) 591-5786
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