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Executrix withholding my share....

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hangnail

Member
What is the name of your state (only U.S. law)? Texas. I'm not quite sure what to do here. Long story short ... my sister is the Executrix for my parents which are now both gone. Their hand written will written by my Mother merely said to split up their monies evenly between the three kids. My sister is now withholding my share because she's using it as a tool to manipulate me. Is there something that I can do to get my share? I live in New Mexico and she lives in Texas.
 


anteater

Senior Member
Was the will submitted to and accepted as valid by the court? Did the court actually appoint the sister to administer the estate?
 

Dandy Don

Senior Member
Check at the county courthouse probate court to determine whether the will has actually been submitted for probate.

An additional factor that affects your case is exactly how the bank accounts/assets are set up. You better hope that they don't have sister's name on them as joint account co-owner, because if it IS set up that way, under the concept of right of survivorship, the money/assets automatically become hers after the parents die. If that is what happened, sis may not necessarily want to inform you about that aspect because she knows you have been cheated out of benefitting.

Exactly when (what month and year) did your parents die? Did your parents die on separate dates? Seems like there should be 2 different probates, and if you never received anything from either, it's time to get a probate attorney to look into this for you.
 

hangnail

Member
My Mom died in 02 and nothing was done about anything because my Dad was still alive. My sister was on her accounts but I'm not sure about my Dads. Her name was on the house too so that when he died there'd be no inheritance taxes or something like that, and us three kids were supposed to all own it, or sell it and divide the monies if that's what we chose to do. She's everyone's POA, and executrix except for myself (I refused. Long story). When our Dad died in 2008 she fibbed about how much each of us were to get from my Dad's insurance until one day when it slipped out and we were really supposed to get a lot more than first stated. I always thought I could trust her but this started to shake my confidence.

Anyway ... we talked about my getting my share and she gave me some and then went against my wishes by putting the rest in a savings account with me as a POD only. And also some in a CD that couldn't be touched for 6 months or a year. We don't get along at all because she is so manipulative and controlling so when we started talking again and when the CD was up we discussed my getting my share again. But as soon as she found out that she wasn't the POD on my accounts, and I didn't plan on giving all that I had left back to the family when I died she became very evasive. Then as if using the money as a tool to get her way... she sends me a document telling me that I was the alternate to take care of my brain injured brother that was made up in 2001 after I had told her a million times that I was incapable of taking on the responsibility. When she sent the document I reminded her of this fact and she said that I just lost my sister and I haven't heard from her since. No probate has been mentioned except that she said something about it being set up to where there didn't have to be one. She is very secretive.

My parents will was merely like a note from my mother written in 83 and more added to it in 85 which was notarized. It mainly said how much they loved us and for us to split up any monies they have, and insurance ... and that the house was put in my sisters name for convince and that it was to belong to all three of us. If my Dad had some in his accounts and she's been using that to take care of the house, then that's fine. I even told her to use some of mine but she said that she'd just take if off the top when the house is sold (if and when). All I want is the part of the insurance money that is owned to me but it doesn't look very promising unless she plans to make me wait till she dies before I can get it. What is my next step ... if I have one, that is?
 

anteater

Senior Member
You are going to have to evaluate how much you are willing to spend to achieve what you want, if, indeed, it is achievable.

I am assuming that your parents are Texas residents, Is that right?

The note may or may not be valid as a will - impossible to say unless an attorney examines it. Notarization does not matter. The difficulty is that it appears that your parents arranged their assets so that they passed to your sister by operation of law rather than through the probate process. And, then hoped that your sister would fulfill their wishes. (You mention insurance. Was the sister the sole beneficiary?)

I would suggest that you gather as much hard documentation about the house and accounts as you can and consult with a few Texas attorneys (if that is where your parents resided). You may or may not have much basis for demanding that sister relinquish control and fulfill your parents wishes. A Texas attorney will have to determine that.

At the very least, I would hope that an attorney would suggest notifying your sister that you are willing to go to the mat on this. It may be a bluff, but sometimes bluffs work, especially if you can pull off the "blowfish effect." That's where you puff yourself up as much as possible and make the other side believe that you are mean, nasty, prickly, and someone not to be trifled with.
 

hangnail

Member
Yes, my parents lived in Texas. My sister does too. My Mom especially gave my sister full authority over all of her stuff and I'm sure that my sister finally got my Dad to go along with her wish to rule. So she probably got him to put her down as beneficiary for his insurance too, but how can I find out? And if this is true then I'd want the will to help me with my parents having said that we should split up the monies and insurance evenly between us.

By some of the things she's said I doubt that the will was submitted to and accepted as valid by the court, and the court didn't actually appoint her to administer the estate ... so if this is true, what would my chances be to get her to give me what is mine? And how would I go about finding out if the court appointed her? Any suggestions before I seek out a lawyer (I only make a little over $600 a month). As an after thought.... if the will is valid, does she have a right to withhold what is mine when it states that we split the money evenly?

Oh and.... I have been learning how to do the 'blowfish' thing lately as far as her trying to manipulate me and it's really causing havoc. She doesn't like being confronted, especially when I have facts to back me up.
 
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anteater

Senior Member
Sorry but you are missing the point concerning the "will." The will only controls the disposition of assets that are solely owned by the deceased. It does not control assets that were jointly owned with right of survivorship or that had beneficiary designations. And it appears that your father arranged his assets so that they passed to your sister through survivorship or beneficiary designation. Otherwise, your sister should not have been able to do anything with the assets (if, indeed, she was not appointed as executor).

As to the insurance, if your sister has received the proceeds, then it is a pretty good bet that she was named as the beneficiary. If you know the name of the insurance company, you can give them a call.

You can call or go to the probate court in the county in which your father resided to see if probate was opened. Try the county's website, also. I know that some Texas counties have probate records online.

What you are looking for is some way to attack the joint ownership and beneficiary designations so that any assets can be "reclaimed" from your sister and brought back into your father's estate where they can be distributed through the probate process according to the will, if it is valid, or intestate succession. Unfortunately, that is why you need the attorney - and probably a really skilled and experienced attorney.
 

hangnail

Member
Yes, I admit that all of this is confusing. So just a few things to see if I'm getting it right. If the will is valid and yet all the assets were passed onto my sister, then the will won't help me because all of the assets now legally belong to her, right? And since she IS for sure the executor then she has the right to get the insurance even though she's not the beneficiary? And if she's not on the insurance as beneficiary then there is still a chance that the Will will work in my behalf but it has to go through probate for this to happen? I hope I worded those right.

This is all very frustrating ... and I never thought it would ever come to this. I hate money and tried to make this all go as smooth as possible but it doesn't look like my efforts are paying off.
 

anteater

Senior Member
If the will is valid and yet all the assets were passed onto my sister, then the will won't help me because all of the assets now legally belong to her, right?
Essentially, yes. Legally, the provisions of a will only control the disposition of assets that are part of the probate estate. Assets of the deceased that are jointly owned with someone else and have right of survivorship or that have beneficiary designations are not part of the probate estate. Those assets legally pass to the surviving joint owner(s) and/or designated beneficiary immediately upon death.

There is a possibility that the joint ownership and beneficiary designations could be attacked on grounds such as the exercise of undue influence and possibly some other grounds. And that those assets could be brought into the probate process. But, it is a difficult (and likely expensive) argument to make and win. You would need an attorney with extensive knowledge of Texas case law and some pretty convincing evidence to prevail.

And since she IS for sure the executor then she has the right to get the insurance even though she's not the beneficiary?
No, she is not the executor unless probate was opened and the probate court appointed her as executor. Merely nominating someone in the will to act as the executor does not give that person legal authority. Even if she had been appointed by the court as executor, she should not have been able to obtain the insurance proceeds if there were living primary and/or contingent beneficiaries on the policy. If she has obtained the proceeds, then:

1) She was named as the beneficiary on the policy (likely), or
2) She lied to the insurance company and the company did not require much evidence (unlikely).

And if she's not on the insurance as beneficiary then there is still a chance that the Will will work in my behalf but it has to go through probate for this to happen?
Yes, but, as I said, if she obtained the insurance proceeds, it is likely that she was the named beneficiary on the policy. The provisions of a will are only legally effective when the will is accepted as valid by the court and the assets that are subject to probate go through the probate process.
 

hangnail

Member
Well, it sounds like she she's got this all wrapped up nice and pretty for herself. How sad. I'd try the blowfish approach but I know how evil she can get when you try to mess with her plans. So the only thing that I guess I can try is one of her tactic's by being super nice to get what I want (a practice I detest), and if that doesn't work then use the blowfish approach if for no other reason than to say that I tried. This all really makes me sick.

Anyway, it has been a pleasure talking with you and I thank you for all your advice. I hate the thought of cutting the string here for I've been feeling that I have a friend in my corner during such a frightening and frustrating time instead of standing on my own. If anything else pops up I will surely come back to this forum and hope that I can reach you again. Or to at least let you know how it ended up. Again, thank you for your knowledge, your time, and your help.
 

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