Executor rights

What is the name of your state? Indiana

My mother-in-law recently died . In her will, she named the eldest of her four sons as executor. The will stipulated that her house be sold and all asset and monies be divided equally between the four sons. My husband's problem is that the eldest son (executor) is cutting one of the brothers out of his share because of long-standing issues between the two of them. He is also holding up dividing up the cash monies that were left and selling the property because of this. Can the executor of a will just cut someone out of it? It was NOT the mother's wishes to have this occur! I know the disinherited brother can sue but he doesn't have the money to do so. What is his recourse and what recourse to the other two sons (including my husband) have if he tries to cut them out as well...he doesn't want anyone to have sympathies with this particular brother. Please help as this is a mess and it's too much to deal with on top of losing the mother. Thanks in advance for your prompt response.

[Dandy Don]

What is the total value of the estate and how much is brother being cheated out of?

If possible at least one family member needs to attend one or more of the probate court hearings for this estate to at least keep abreast of what is going on. What executor is doing is illegal and at some point he is going to have to provide an accounting to the court and possibly copy of an estate tax return.

You need to be at least talking to a local probate attorney to find out what your best option is for taking preventive measure--it should be fairly inexpensive to find an attorney to warn executor that his actions will be scrutinized so that he will be scared into doing the estate right before a complaint is filed, or a protest could be made to the judge before probate is completed, and you also need to consider filing a claim to ask the judge to require that an executor's bond be posted for this estate so the heirs would have some protection if it is later proven that the estate was administered incorrectly.

DANDY DON IN OKLAHOMA (tiekh@yahoo.com)

Thanks Dandy Don,

We just realized there is a twist in this whole thing. The mother had the deed to her house in the elder brother's name along with money/insurance papers in a safe deposit box. He doesn't have to go to court for anything. Since the house was in his name can he in fact cut out all the brothers from their share of money? Thanks!

[JETX]

"Since the house was in his name can he in fact cut out all the brothers from their share of money?"
*** If 'share' you mean the value of the house, yes, since the house is NOT a part of the estate.
If by 'share' you mean the remaining estate assets, no. The executor is REQUIRED to comply with the terms of the will. If not, they can be held liable for breach of their executor obligations.

[Dandy Don]

Has the will even been filed for probate? Aren't there other assets in the estate that need to be probated?

No, the will has not been filed for probate. There is a car, cash, retirement and IRA monies that according to the will, were to be equally distributed amongst the four brothers. Also, we just found out that the house is NOT in the eldest son's name after all. My mother-in-law changed the deed back to her name prior to her death. As it stands right now, the eldest son is taking it upon himself to make all of the decisions regarding the selling of the home and everything else without even really consulting with the rest of his brothers. It's been brought up that a co-executor should be in place should something happen to him (in which case, everything would go to his wife who doesn't get along with anyone in the family). He refuses to have anybody else's say-so and disregards all their input. What can we do at this point to see to it that everything is distributed fairly and equally in a timely manner (he basically said he is going to take his sweet time about it).

[Dandy Don]

He can't disinherit anyone but the problem is that he doesn't have any incentive to produce the will for probate. You need to be talking to a local probate lawyer to find out if he is obligated by law to produce it or if there is a deadline for filing it. If it is true as you say that the only other assets are insurance, then that passes outside of probate.

If he was named as a joint account or beneficiary of the bank accounts, then that money also passes outside of probate, but if he wasn't, then this money is supposed to go through probate.

You also need to contact a local title/abstract company to get an official copy of the deed to see exactly how it is titled. If brother's name is on it you need to find out from a probate attorney or real estate attorney how that will affect the probate process--in other words, is he now legally the only owner or do the other siblings still have a share in it?

If this lady has other assets that need to be probated, then he should want to get the will probated, because then he will receive his share of this estate if he gets anything, but it looks like he is trying to aggravate you siblings by taking his own sweet time. You must be understanding and allow that it does take a few weeks for the executor to get an overview of the entire estate. After talking with your attorney, give brother the option of being told that if he hasn't filed the will within 30 days, then another sibling or your attorney will file papers at the courthouse to become administrator and thus open the file for probate to get things going, and perhaps that will force him to do something, but you need to have a general idea of how much the entire estate is worth to see if it meets the minimum amount required for filing for probate.

Thanks for the advice. I will respond back soon. Thanks again.

Dandy Don or Anyone Else Who Would Like to Respond

Just what can go into probate? We pretty much surmised that the house must go into probate because it is not in the executor-brother's name after all. However, the monies that were in the safe deposit box that was to be divvied up between the four brothers was removed by the executor-brother which he moved into a personal bank account in his name. Although he had joint access to the safe deposit box, does he have a right to do this ....put the money into a personal account or, does this money have to go into probate? My husband and his brothers just want to divide the cash that was in the safety deposit box (like their mother wanted) with exception of maybe holding back enough for the brother-executor to cover any unexpected expenses (even though the mother was more than thorough making sure all her debts were in order).

This whole thing has been most stressful on my husband and we just want to get things wrapped up and make sure that the wishes of the mother (will) are carried out sans all the drama of power tripping, personal vendettas, etc. The executor-brother seems to love holding this power of executor over his brothers' head and has even threatened to not follow out the will by not giving two of my brother-in-laws their rightful share. Please advise. Thanks!!

P.S. Stupid question but should my husband be getting a lawyer? We live in California and all the drama is going on all the way in Indiana. How would this work since we live in different states?

[Dandy Don]

If needed you should hire an attorney in the same county in Indiana as to where the estate is probated. Is there anyone (the bank, a witness) that can verify/testify or provide written evidence as to how much was in the safe deposit box when the money was taken out? If not, then you are out of luck on that.