Sibling Withholding Docs from Executrix

[Emerald Girl]

What is the name of your state? Washington State

My mom died a few weeks back. She isn't survived by a spouse. She had a will that names me as her Personal Representative. Before she died, my mom and I had been estranged for 4 plus years with the exception of exchanging notes and cards over the years. My sister took care of mom's day-to-day business for the last 4 plus years. My sister has sole access to all of her account numbers, the original will, her insurance records, tax returns, everything.

My sister is being extremely uncooperative and will not surrender any of these documents so that I can distribute mom's assets in accordance with my responsibilities as a Personal Representative. I need to at least file the will and would like to probate it. A couple of questions:

1. If the probate process formally appoints a Personal Representative, then right now I'm not "technically" a Personal Representative. Who, then, is responsible for filing the will and/or leading it through probate?

2. What recourse do I have against a sibling who is withholding documents that a Personal Representative needs to settle an estate? Do I have a lawyer send a demand letter, petition my sister (who isn't the Personal Representative) for an estate accounting, call the cops, or get a search warrant? Totally lost here.

3. I do have a photocopy of the original will. I need to at least file this thing. 15 of my 40 days have elapsed now. Can I send a photocopy to the court with a letter stating this is the best I can do and give them my sister's personal information with a request that they look her up if they want the original?

Please help. Thanks, All.

 

[aanubis]

A thought. If you have been estranged, as you say, then it's possible that your mother completed another will and thus you are no longer pr. Maybe your sister is now pr and is following through already?

 

[Emerald Girl]

Good thoughts. Last week my husband spoke with my sister who confirmed that the will that was drawn up with me listed as the PR is the only will that's ever been executed.

 

[anteater]

I think that you need to ask yourself a question first. If your sister is being a squibbling (a squabbling sibling - an inside joke) already, do you want the potential headaches of being personal representative? You could waive your right, allow her to be the personal rep, and still keep a close watch on the probate proceedings. Just a thought.

If you want to proceed, I recommend that you retain an attorney in the county in which your mother resided. Unless Washington is very different form most states, sending a letter and a copy of the will to the court is not likely to get you very far. Worst case, you apply to open probate intestate, get your appointment as pesonal rep, and then ask the court to compel your sister to produce the original.

In the meantime, maybe a written reminder to sister about Washington law might shake things loose:

RCW 11.20.010
Duty of custodian of will — Liability.

Any person having the custody or control of any will shall, within thirty days after he shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor, and any executor having in his custody or control any will shall within forty days after he received knowledge of the death of the testator deliver the same to the court having jurisdiction. Any person who shall wilfully violate any of the provisions of this section shall be liable to any party aggrieved for the damages which may be sustained by such violation.

 

[Dandy Don]

What did mom die of? Did mom suffer from any disease where the medication would have affected her judgment/mental capacity?

Sister may have used undue influence to get mother to sign a different new will which most likely names her as executrix. Have you checked at the county courthouse probate court to see if the will has been filed yet--normally that is done within 30-60 days of the death.

Sister also most likely has obtained power of attorney, so you may want to be consulting with an attorney at some point to find out if your state has laws against abuse of POA if you think she is dishonest enough to use some of mom's money for herself instead of spending it on mom's care and keeping receipts to prove how she spent it.

DANDY DON IN OKLAHOMA ([email protected])

 

[Emerald Girl]

Hi Anteater,

I would love to reliquish my responsibilities as Personal Rep if that, in fact is what I am. The will hasn't been probated. The problem is that I don't trust her to do the right thing. Filing the will would be a stretch. Probating it . . . . doubtful cuz it's not what she wants. Think she's done something with mom's assets. Not sure at this point cuz she won't surrender the documents I need to investigate. Again, don't trust anything she says.

Have been reading a bit about Washington State law. If the will is just going to be filed, it needs to be filed in the county where mom resided. If it's going to be filed and probated, then that can be done in any Washington State county. If the latter is the case, then can't I retain a lawyer anywhere he/she is located in Washington state? You're right, though, I may have to go thru with intestate probate and compile a petition to to administer the estate. Hope it doesn't come to that. The lawyer who drew up the will should have a second original copy cuz I provided him with it. He's looking now.

Thanks for cutting and pasting that RCW in your post. I used it in an email that was sent a few hours ago. Not sure if it's going to do any good. According to what I've witnessed in the past, she has no regard for authority. She was up and in a cop's face once. A psychiatric hospital went into lockdown to prevent her from getting in. In my opinion, she is mentally unstable.

Thank you very much for your thoughts and comments. Jump in again if you'd like. Open ears here.

 

[lwpat]

It is best to probate in the county where she resided. You can start probate and request to be named the PR without the will. Then you will have the legal authority to access the records. I suspect that your sister has used up all of the funds.

 

[Emerald Girl]

Hi Dandy Don,

Mom had been on meds for various different reasons for the past several years starting with a mild stroke she suffered in 2001 or 2002. She had also been confirmed legally blind by a doctor around 2000. She died of kidney failure so assuming many more meds were added to the ****tail leading up to her death.

Would I put it past my sister to use undue influence or slip her an important document under the guise of paying a bill? No. The lawyer who drew up the will spoke with my sister. He was under the impression that there's not much left in the estate because my sister indicated "there's nothing to probate". Do I believe this? No. Do I believe anything she says? No. Investigative work is gonna be needed to uncover the truth. Haven't checked the court to see if the will's been filed or probated. Trying that periodically . . . thanks for being tickler file. Gonna check right after this post.

Trying to consult with attorneys . . . very busy profession! Those that we've spoken with don't seem to think time is of the essence. Hmmm . . . laws against abuse of POA. Might try that avenue. Last I knew, I was the POA. Not sure she and mom changed that. My sister claims that the will that was drawn up while mom was in my care is the will of record. The original POA might still be the POA of record for all I know. As mentioned to Ant Eater, don't trust a word she says.

Thanks for your insights. Good avenues if an investigation shows the POA was changed to my sister's name. More allegation, anyways!

 

[Emerald Girl]

Hi LWPat,

Thanks for your response. Think I'll take ya up on your advice to file probate in the county she resided in even though Washington State laws say you can probate in any county there.

Without a will, you're suggesting probating intestate and petitioning to administer the estate, right?

Have a hunch the funds are gone, too, but need to be certain. Hopefully this isn't the case as it's not what my parents wished when they were both healthy, lucid, alive. Then can go forth with other possible recourses and put this chapter of my life behind me and my husband.

One last thing: If the funds do turn out to have disappeared, aren't there tax implications if she received more than then the alloted gift tax per annum or if she spent the funds on herself, i.e., paying off a mortgage?

As if grief isn't hard enough.

 

[Dandy Don]

She most likely may or may not have been aware of the fact that you were given POA previously, but probably went ahead and asked mom to give HER one, a separate one, anyway. Mom should have sent you a letter canceling the POA she gave to you but probably didn't know to do that. If she can't account with receipts for the monies she got to prove she spent them on mom's care, if your state has laws against abuse of POA or financial elder abuse, she will have to repay the money to the estate if someone brings suit against her.