attorney waiting for Admin's "permission" to file surety claim

[agedashi]

What is the name of your state? IL

Father died in Feb 2004 with 2 heirs (brother and self). Within days of father's death, opened probate (hired probate attorney). At that time, we also obtained a surety bond to cover the value of the estate. Brother was named Administrator. I spent two weeks in IL after father's death getting estate in order, i.e. closing accounts, identifying who to pay when and how much. Administrator duties involved paying bills and preparing 1-BR condo for sale.

6 months after father's death, I contacted probate attorney re disposition of estate. Attorney indicated no claims filed against estate, and proceeded to ask brother to provide estate inventory. Brother failed to respond for one month to requests by attorney and myself regarding status of condo (readiness for sale), and provision of the estate inventory.

In October 2004, brother indicated (in response to an email that I sent) that he had been paying himself almost $1200 in monthly Administrator's fees (total of $7000) and that he had "borrowed" $19,000 from the estate. The initial amount of cash in the estate was about $45,000, so brother had taken more than 50% of cash in the estate. At that time, brother also indicated 1-BR condo was still not ready for sale or lease despite estate continuing to incur monthly mortage and assessment payments of about $1100/month, and that there was only enough cash left in the estate to pay 3 more months of condo mortgage and assessments. Brother provided an inventory of the estate to attorney documenting his attorney's fees, his advance and other expenses he had charged against the estate, but afterwards refused to take any further actions to finish preparing condo for sale, listing the condo, or anything else related to his duties as Administrator.

Despite these events, the probate attorney recommended that brother remain as Administrator. Brother continued not to fulfill his duties as Administrator. Long story short, before anything further happened on the estate, I had to personally fly to IL to find a real estate agent to list the condo for sale. Moreover, I paid the outstanding mortgage and 3 months of overdue assessment fees out of my personal funds in order to avoid having the condo go into default before it sold in March 2005 (13 months after my father's death, and consuming $14,300 of the estate assets).

Now, 3 months later, there is still nothing happening on the estate. I have asked probate attorney to file a claim to use the surety since this is a clear case of devastavit. However, the attorney has been seeking my brother's "agreement" to go along with the surety going through with a claim. My brother has clearly indicated that he does not want to be responsible for repaying the surety company, and thus has refused (and has zero incentive) to give the attorney his blessings to use the surety.

The latest is that the probate attorney sent out an email stating that she would need my brother's agreement in order to go through with the surety, otherwise, she might ask to remove herself from the case. Needless to say, that message put my brother in a powerful position to decide his own fate and to absolve himself from any responsibility for having mishandled the estate assets. He has zero incentive to agree, and I told the attorney that, and to date he has yet to agree (it's going on over 3 months since the attorney first asked for his "permission").

I've also asked the probate attorney why she doesn't hear the matter before the court, and she failed to respond to that question.

What is going on here? There seems to have been no benefit to following the rules of probate and paying surety bonds when the Administrator can abscond with estate funds, and even when we have all of the evidence indicating such, the probate attorney refuses to bring the matter to the Court for a ruling, and instead asks the guilty party for "permission" to be held accountable.

Please help. What should I do in this situation?

 

[BlondiePB]

What is the name of your state? IL

Father died in Feb 2004 with 2 heirs (brother and self). Within days of father's death, opened probate (hired probate attorney). At that time, we also obtained a surety bond to cover the value of the estate. Brother was named Administrator. I spent two weeks in IL after father's death getting estate in order, i.e. closing accounts, identifying who to pay when and how much. Administrator duties involved paying bills and preparing 1-BR condo for sale.

6 months after father's death, I contacted probate attorney re disposition of estate. Attorney indicated no claims filed against estate, and proceeded to ask brother to provide estate inventory. Brother failed to respond for one month to requests by attorney and myself regarding status of condo (readiness for sale), and provision of the estate inventory.

In October 2004, brother indicated (in response to an email that I sent) that he had been paying himself almost $1200 in monthly Administrator's fees (total of $7000) and that he had "borrowed" $19,000 from the estate. The initial amount of cash in the estate was about $45,000, so brother had taken more than 50% of cash in the estate. At that time, brother also indicated 1-BR condo was still not ready for sale or lease despite estate continuing to incur monthly mortage and assessment payments of about $1100/month, and that there was only enough cash left in the estate to pay 3 more months of condo mortgage and assessments. Brother provided an inventory of the estate to attorney documenting his attorney's fees, his advance and other expenses he had charged against the estate, but afterwards refused to take any further actions to finish preparing condo for sale, listing the condo, or anything else related to his duties as Administrator.

Despite these events, the probate attorney recommended that brother remain as Administrator. Brother continued not to fulfill his duties as Administrator. Long story short, before anything further happened on the estate, I had to personally fly to IL to find a real estate agent to list the condo for sale. Moreover, I paid the outstanding mortgage and 3 months of overdue assessment fees out of my personal funds in order to avoid having the condo go into default before it sold in March 2005 (13 months after my father's death, and consuming $14,300 of the estate assets).

Now, 3 months later, there is still nothing happening on the estate. I have asked probate attorney to file a claim to use the surety since this is a clear case of devastavit. However, the attorney has been seeking my brother's "agreement" to go along with the surety going through with a claim. My brother has clearly indicated that he does not want to be responsible for repaying the surety company, and thus has refused (and has zero incentive) to give the attorney his blessings to use the surety.

The latest is that the probate attorney sent out an email stating that she would need my brother's agreement in order to go through with the surety, otherwise, she might ask to remove herself from the case. Needless to say, that message put my brother in a powerful position to decide his own fate and to absolve himself from any responsibility for having mishandled the estate assets. He has zero incentive to agree, and I told the attorney that, and to date he has yet to agree (it's going on over 3 months since the attorney first asked for his "permission").

I've also asked the probate attorney why she doesn't hear the matter before the court, and she failed to respond to that question.

What is going on here? There seems to have been no benefit to following the rules of probate and paying surety bonds when the Administrator can abscond with estate funds, and even when we have all of the evidence indicating such, the probate attorney refuses to bring the matter to the Court for a ruling, and instead asks the guilty party for "permission" to be held accountable.

Please help. What should I do in this situation?

You need to hire an attorney in IL, like yesterday, to remove your thief brother as the administrator of the estate, to salvage the rest of the estate, and to deal with the embezzlement done by your brother.

 

[agedashi]

What is the role of the probate attorney in case of devastavit?

I thought there WAS an attorney (the one we hired) when we opened probate. Isn't the probate attorney's role to ensure that the interests of the estate are upheld? Isn't the purpose of the surety bond to provide protection for the heirs of the estate against devastavit (abuse and negligence) by the Administrator? If not, why is a surety bond required in the case of independent administration? That would be like requiring drivers to maintain current insurance, but if someone hits them in an accident, they need to bear the costs of going to Court to argue that the guilty party's insurance should cover the cost of damages.

Why, after having diligently followed the "probate process" (in order to make sure that the process was completed in an orderly fashion, and that any exceptions would be handled within the dictates of the process) should an heir need to bear the burden and costs of hiring yet another attorney to enforce the process when there was already a probate attorney hired to oversee and handle exceptions in administering the estate?

It seems to me that the probate process makes specific provisions for devastavit (via requirement of the surety bond and court jursidiction), so my question is, what are some reasons why the probate attorney unwilling to fulfill her role and bring the matter before the Court?

Are my expectations of the probate attorney consistent with provisions stated in the probate process or have I misinterpreted the law?

 

[anteater]

I thought there WAS an attorney (the one we hired) when we opened probate. Isn't the probate attorney's role to ensure that the interests of the estate are upheld?

Are my expectations of the probate attorney consistent with provisions stated in the probate process or have I misinterpreted the law?

While the attorney has a duty to the estate, the Administrator is still the attorney's client. And when a client takes questionable actions and does not follow the attorney's advice, the attorney is placed between a professional and ethical rock and a hard place. She likely has been busily consulting the Code of Professional Responsibility, the Illinois Bar, court cases, etc. And that is likely why she is talking about resigning. (Try doing some googling on attorneys' obligations in cases like this and see what a tough road it is for an attorney.)

That is why BlondiePB's advice is well worth taking.

 

[dmode101]

If you're going to make headway in this case you're going to need to hire your own attorney or go into court yourself to have the admin removed for cause and document your brother's theft from the estate. Then you can take control of the condo and sell it. Ideally, the remaining cash plus proceeds from the condo will cover what your brother stole from the estate plus all of the attorneys fees. If you file to have him removed and yourself named then the fees should be payable from the estate (of course, that is 1/2 youra). The fees are going to end up being substantial here. Sometimes that's just the way these things go.

But you can't count on the attorney voluntarily disclosing and remedying her client's misconduct. You said that "we" hired the attorney, but in reality, her client is the administator and while she has fiduciary duties to the beneficiaries, her client is the administrator, and when they conflict, the lawyer will usually jsut resign, as she has threatened to do.

 

[agedashi]

Thanks so much for the feedback. The condo was sold at the beginning of the year and the proceeds from the sale just about equaled what the estate had to pay out in: (1) mortgage and assessment fees while it sat empty (and unsaleable), (2) costs of improvements to the unit, (2) the administrator's fees that my brother paid himself, (3) closing costs, and (4) paying the listing agent's commission.

Thus, after paying for the cost of selling the condo, and my brother having already claimed his (unauthorized) inheritance from the estate, there is no money left in the estate, so the only way of recovering what was lost is by filing a claim against the surety. The probate attorney is absolutely clear about this, and she openly states to my brother that the reason we are in this situation was because he took money from the estate. There is no dispute about any of this (on my brother's part or on the attorney's part). The only problem right now is the attorney's unwillingness to simply *file the claim* without getting my brother's *permission* to do so. This despite the attorney having already told me that my brother's permission is *not required* to file a claim against the surety. So I can only wonder why are we waiting for his permission before filing the claim???

If I had known that this is what happens in probate if the Administrator behaves badly, I have a fundamental problem with the entire probate process. When my father died, my brother was totally against opening probate. I was totally for it, because it was the law (my father died intestate and the estate was valued at over $50K), and because I thought probate was the legal mechanism to ensure protection of estate assets (since part of the legal requirement was for the Administrator to be covered by a surety bond). With all of that, I thought the purpose of probate was to protect the resources and interests of the person who died intestate. I thought "we" hired an attorney because I thought the attorney was supposed to work on behalf of the *estate* not on behalf of a particular heir. The attorney has been paid out of the estate which means that, as one of two heirs, half of the attorney fees are being paid out of my inheritance. If the attorney is really just working for the Administrator (and not the estate), why do all heirs have to pay for the attorney (out of estate monies), and not just the Administrator?


Why does the Probate Act of 1975 make provision for "any person who may have been injured by reason of the neglect or improper conduct of the principal on the bond" to prosecute a suit on a bond "in the name of the people of the State of Illinois?" (See reference to excerpt of code below).

(755 ILCS 5/12‑15) (from Ch. 110 1/2, par. 12‑15)
Sec. 12‑15. Suit on bond. Suit on a bond executed under this Act may be prosecuted against one or more of the obligors named in the bond in the name of the people of the State of Illinois for the use of any person who may have been injured by reason of the neglect or improper conduct of the principal on the bond.


These are somewhat rhetorical questions. My main frustration is with the probate process if what is happening in my case is considered 'normal,' or as you say, "just the way it is." If Administrators around the country know they can commit devastavit (abuse their fiduciary role as Administrator) and have a good chance of getting away with it if the heirs are either unwilling or incapable of expending considerable amount of their personal funds on attorneys fees to correct the abuse (even when the probate attorney already has all of this evidence and just fails to bring the matter to the court), then really what we have is a legal process that actually enables abuse by Independent Administrator rather than protect against it. I have real problems with that since we basically have a legal system that fails to provide fair protection against stealing from the dead.

 

[anteater]

Alright, you had misconceptions on the Administrator/Estate Attorney relationship. You don't think the system is right and just. Fair enough. But if you are going to get anywhere, you will just have to accept that this is the legal system you are working with.

I am putting on my clairvoyant tinfoil helmet. What the estate attorney is saying to you is: "There is every good reason to file this claim. But your brother, the administrator, is my client. I can't do it without his persmission. Why are you just standing there waiting for someone else to do something? Go do it!"


(That and, "There are times when I wish that I had been home with the flu when a potential client knocked on the door.")

 

[BlondiePB]

I am putting on my clairvoyant tinfoil helmet. What the estate attorney is saying to you is: "There is every good reason to file this claim. But your brother, the administrator, is my client. I can't do it without his persmission. Why are you just standing there waiting for someone else to do something? Go do it!"

Do clairvoyant tinfoil helmets work better than those crystal balls that always need repairing?

 

[Dandy Don]

Your brother is the person who is responsible for the complications here. He is going to be in trouble big time.

As soon as you get another attorney to bring this matter before the probate court judge, you will be making substantial progress.

If you are lucky, this situation will be resolved in the current probate without you having to file a separate lawsuit for breach of fiduciary duty and/or theft to get him removed. Is he so stupid or clueless that he can't see that he will be losing out on his executor's fee and could also face jail time/criminal charges for his theft?

DANDY DON IN OKLAHOMA ([email protected])

 

[anteater]

Do clairvoyant tinfoil helmets work better than those crystal balls that always need repairing?

The summer heat and humidity really degrade the accuracy of the the crystal balls. The tinfoil helmet is much better at catching the berthold rays as they bounce off the summertime temperature inversions.

 

[BlondiePB]

The summer heat and humidity really degrade the accuracy of the the crystal balls.

No wonder my crystal ball is constantly in the shop for repairs. Time to find a clairvoyant tin helmet and get a good supply of them.

 

[agedashi]

This has been really helpful feedback anteater, BlondiePB, and Dandie Don. Thanks so much. You've convinced me about what makes sense in terms of next steps.

I Hope Dandie Don is right ... "If you are lucky, this situation will be resolved in the current probate without you having to file a separate lawsuit for breach of fiduciary duty and/or theft to get him removed."

This is exactly what I hope for.

 

[anteater]

Good luck. Just don't get too down on the estate attorney. She is in a difficult position due to your brother.

And remember: the large majority of Administrators are honest and conscientious.

 

[BlondiePB]

You are very welcome, agedashi. The first thing you want your own attorney to do is to stop the release of the bond. Get it done quickly.

 

[agedashi]

Hired attorney but nothing is happening

I found an attorney in August 2005 to represent my interests in this case as the one other beneficiary. The only open issue pertains to a 2nd property that my brother (the Administrator) discovered back in Jan 2005. It's been 10 months, and the probate attorney and surety company won't do anything until that property is sold; this despite an appraisal (which the probate attorney advised that we obtain, and that I paid for) indicating that the property would be unlikely to yield a net profit given the amount of the outstanding mortgage relative to the appraised value. Nevertheless, closure of the estate has been stalled pending liquidation of this property. Needless to say, this made me wonder why I paid for an appraisal (which I have yet to be reimbursed for) when it didn't seem to make any difference one way or another on the probate attorney's willingness to use the surety to cover the monies that my brother took from the estate.

After I obtained counsel in August 2005, my brother indicated that he would "get the house on the market right away." That was three months ago and nothing has happened, apart from the probate attorney asking to continue the matter of the surety bond and telling my attorney that she doesn't know what my brother's status is with the property. A month later, my brother told the probate attorney that he was hiring another attorney. Needless to say, I had a hard time understanding why any attorney in their right mind would want to take him on as a client (assuming he told them the truth about the circumstances of the case). That was over a month ago, and my brother has not yet told the probate attorney who his new attorney is. Obviously, this creates even fewer incentives for the probate attorney to "do" anything other than wait.

The issue I have with what has happened since obtaining counsel is instead of me waiting for the probate attorney to "do" something so we can access the surety bond, and close the estate, now there are three of us (myself, my attorney, and the probate attorney) waiting on my brother to "do" something despite the fact that there has been no evidence whatsoever that he is doing anything other than putting up more roadblocks. The only significant thing that has changed since I obtained consel is that instead of me communicating with the probate attorney directly, my attorney communicates with the probate attorney and now, I am incurring attorney fees for the attorney to mediate communication. Meanwhile, anything that my brother does or fails to do that takes up the probate attorney's time is not coming out of his pocket, but gets charged as an expense to the estate.

I would really like to hear some insight about what is going on here. Given everything that has happened with this estate, what more has to happen before it makes sense to adjudicate the matter? It doesn't seem like anybody (other than me) has any incentives whatsoever to really "do" anything other than wait for somebody else to do something. And the person who should be doing something (my brother) doesn't have any incentives whatsoever to do anything! Can't this be brought before the probate court to force some kind of decision? This has gone on forever, and I have no confidence that it will ever get resolved given the way things have progressed. It's been said that the definition of insanity is doing the same thing but expecting different results. That really seems to be what is going on here. Any insights would be highly appreciated!