Asking the Executor of an Estate for an Accounting

[snowmizuh]

What is the name of your state? Alabama

Hello,

My mother's will named my sister executor. My mother became suddenly incapacitated and unable to care for herself the last 18 months of her life. During this time, my sister used her power of attorney to take care of my mother's affairs. My mother died about a year ago and the probate process is coming to an end. My sister has filed a claim against the estate for an amount significantly greater than the traditional 2-5% executor's fees, essentially saying that my mother ran out of liquid assets during her period of incapacitation requiring my sister to pay certain expenses out of her own pocket. I have tried to run some calculations based on the liquid assets I knew my mother had when she became incapacitated and known expenses such as taxes, bills and care fees. Everytime I do this, there appears to be a significant discrepancy between my sister's claims and what I can figure.

I have asked for an accounting from my sister but she has refused. Since then, my lawyer has challenged her claim on the estate and sent her a pleading for the accounting. The only response so far has been an affidavit by my brother stating he has saw an acconting several times before my mother's death and that he had no issues with it. My lawyer is now saying I will have to pay to subpoena my mother's and sister's bank records to get the accounting. Here are my questions, and thanks in advance for your help:

1. Why should it be necessary to subpoena the records for the accounting? Isn't an executor required to provide this accounting if an heir requests it?

2. My sister did some strange things while during the time my mother was incapacitated. For example, my sister transferred several large sums of money from her personal accounts _to_ my mothers accounts. Now, she is listing those transfers as part of the reason for her claim against the estate. Is this a normal practice for an executor?

3. Does the executor have to furnish an accounting for the period after my mother became incapcitated but before my mother died? If not, what can I do if I suspect some malfeasance occured during this time?

4. If my brother and my sister had their names on an account of my mother's but not me, are they entitled to whatever sum was in this account, or should it have been part of the estate to be divided equally among hiers?

5. I strongly suspect that the power of attorney my sister used was forged. I have a copy of it and the signature was clearly not my Mother's, it was notarized out of my mother's hometown, and, while the date on the document is a few months before my mother became incapcitated, it wasn't filed until _after_ my mother became incapcitated. Is this an issue worth exploring? What recourse have I here?

6. Is there any course of action I am missing?

Again, thanks so much for your help. I hate that our family has descended into this conflict, but I won't be able to live with myself unless I can be convinced that my sister has handled things in a fair and ethical manner.

 

[ALawyer]

The accounting as part of the probate proceding typically covers matters relating to the assets in the estate at time of death, not prior to time of death.

Those pre-death issues are separate.

If there was a joint account with right of survivorship, unless you were a joint owner, you are OUT OF LUCK absent a claim that it was essentially held in trust.

If the power of attorney was forged, then any taking of the money was wrongful. BUT if they actually spent the money on your mother's care, thye's likely have a claim for it.

Look, you have a lawyer. Nothing you said suggests the lawyer is not on the ball. If you have questions, your lawyer is the best one to ask. If you have any doubts, get another lawyer to give you a second opinion, as the cost of that is modest.

 

[Dandy Don]

So sorry about this sad situation. It's unfortunate when greed takes over and deprives heirs of what is rightfully theirs.

1. The reason that the subpoena might be needed is that since sister used her personal funds to pay expenses she has a right to privacy, but if she was honest and ethical and had receipts to verify the actual amounts she paid, she should be willing to automatically provide this information since the estate is involved.
But we all know that she probably inflated the amounts she paid and probably doesn't have receipts to confirm, which is basically another form of stealing which she will probably get away with.

Executor may not be required to provide the accounting to the heirs, but you should wait until the estate closes and the accounting will (or should be) filed along with the other probate documents and you can review them then.

2. If she had power of attorney to get the money from the accounts, there is no recourse you have to complain about her getting this money. The transfers of large sums of money from her personal accounts to her mother's accounts are somewhat odd and it was a stupid thing to do, but it looks like she was trying to be sneaky and confuse the accounting by mixing up her money with her mother's money and then being able to take out whatever she wanted with probably no intention of ever having to account for it.

4. Money in a joint account is payable only to the account co-owners named on the account and does not go into the estate.

5. Contesting the power of attorney is going to be very difficult and will cost you a lot in upfront fees to pay an attorney to represent you. Since you admit mother was incapacitated, that could be the reason that her signature looked different. How could you prove the exact date that she became incapacitated?
The statement "it was not notarized out of my mother's hometown" is a bit confusing--did the notary witness the mother's signature or not (no matter what town it was signed in)?

What is the value of the entire estate?

Sister is certainly entitled to the executor fees if she is serving in that capacity and doing the work. What amounts is she asking for in reimbursement for whatever monies she spent, and what amounts do you think she is entitled to receive?

It may not be worth the time and trouble and expense for you to contest these expenses even though you have the right to expect honesty and fairness and of course you want to get every penny you are entitled to as an heir, it seems you may be going a bit overboard in demanding 100% honesty from a sister that you know is somewhat dishonest. Unless she has stolen thousands of dollars that you could prove were stolen by having an accountant audit the figures, just accept whatever is determined to be your share of the estate and move on.

DANDY DON