How does one remove an unethical lawyer from being an executor??

[johngoodboy]

We have a lawyer in Ohio who is both the attorney and executor of my mother's estate. The problem is that he does not communicate and does as he wishes. There is $16,000 cash missing in the list of assets. We hired a lawyer to handle him but my mother's attorney will not talk to him. He has made threats of big surprises to the heirs of the estate. He has billed the estate $15,000 for executor fee. And has attorney fees of almost $10,000 to his law firm.

How can we get this CROOK off the executorship?
Can we ask/demand an audit from the probate court?
Can a judge get him and his firm removed from the case? Can we sue the CROOK?????

Thanks, John

 

[ALawyer]

Generally all amounts paid to the executor as executor and as attorney must be approved by the probate court, generally after petition. So in theory a judge has to okay the bills to avoid what would be a major conflict of interest as he could bill his fees as attorney and approve them as executor paying whatever he wanted to charge. The courts should not permit total lack of accountability.

Unfortunately, in some places the probate court is a major source of patronage and the good old boy system is at work.

If your family has a lawyer checking up on the so called crook, he should follow thru. If he isn't, get another watchdog.

 

[advisor10]

3-25-2002

DEAR JOHNGOODBOY:

You must be able to come up with specific, documented proof that theft or misconduct, etc. has occurred before you can get the executor removed. Any probate attorney can advise you on how this is done. If you can prove what you say about the missing $16,000 then it sounds like you have grounds to get him removed.

Yes, it does sound as if this is a rotten one!

A reference book I consulted says that executor fees in Ohio are computed at the following rate:

4% OF THE FIRST $100,000 VALUE OF THE ESTATE, plus
3% OF THE NEXT $300,000, plus
2% OF THE BALANCE, DETERMINED WITH REFERENCE TO PERSONAL PROPERTY, INCOME RECEIVED, AND PROCEEDS OF REAL ESTATE.

Therefore, you would have to have some idea of the total value of the estate before you could know whether or not his charges are improper, and you must also distinguish between the actual fee is getting as executor, which could be separate from the counsel or advice of his law firm (there, you should look at the number of billable hours and if they have paperwork to back it up, but even then it seems like an exorbitant amount of time if the estate was a simple one).

Has he provided an accounting of the estate assets yet?

Find out from an attorney or from the probate court clerk if it is a requirement in your state or county that executors post a bond for the estates they manage--if the answer is yes, then that might be an avenue you could pursue (by filing a claim with the bond insurance company) to recover any missing or stolen monies, which would be cheaper than pursuing a lawsuit.

However, an attorney could file a motion with the probate court very soon to have this executor removed (maybe even cancelling his fee if your evidence is valid) if you can prove his misconduct.

Good luck--I feel you are going to be very lucky in fighting this scoundrel!

SINCERELY,

advisor

 

[advisor10]

3-26-2002

DEAR JOHNGOODBOY:

Please explain the details of the $16,000 in missing cash.

Where was this money being kept and how did you discover the loss?

Did he have access to this money before or after your mother died? If he had a power of attorney form signed by your mother before she died, then he could properly claim this money. But the power of attorney expires at the point of death, so if he claimed it after she died, he might have had valid power to do so as executor, but it WOULD have to be reported as an estate asset.

Although it's unlikely, it's possible that he just might have a valid explanation for this money--but it sure will be interesting to see what he says.

SINCERELY,

advisor

 

[johngoodboy]

Missing 16K

Yes the 16K can be proven. It was rent money for farm land. It was not in the assessment of the estates assets filed in probate. On his fees in the will it is 3% of the total assets and stated no bond for him.
He is her lawyer and executor of the will.

He also charged the estate almost $10,000 on attorney fess to his firm.

The lawyer was suppose to set up a trust for my brother and one is not set up. It has been over 8 months since her death.

Another thing is he is claiming assets on money that was P.O.D. from 4 of my mother's accounts. I talked to a para legal and she said that those accounts do not belong to the estate. Is this true?

The last of our probem is the Judge in probate and the executor/lawyer of my mom's will are best of friends.

Our family did aquire a lawyer but he is not
confronting him very well. We are giving him one more chance and then will look for a more aggresive lawyer.
Thanks for the advice. John

 

[advisor10]

3-27-2002

DEAR JOHNGOODBOY:

The answer to your question on POD accounts depends on who the beneficiary of those accounts are. If it was your mother, then the money should be part of her estate. If it is someone else, then that money is payable directly to that beneficiary.

The judge's friendship in this case makes it a possible conflict of interest, but this could go either way--it may be a good cause to claim conflict of interest, or the judge could claim that he is not going to be biased, but your attorney should try to get these probate hearings scheduled to another probate judge's court, if possible.

SINCERELY,

advisor

 

[johngoodboy]

POD

All PODS were to the beneficiaries. On a good note our lawyer is doing the prep work on getting the unethical one removed from the case. I will keep all updated to how this soap opera ends.
Thanks for all the advice. John

 

[johngoodboy]

UPDATE

Well folks the executor has hired another law firm to represent him. He has charged an estimated 5 thousand to the estate (it sounds like he went to the same ethics class with the Clintons) to hire the firm.

On a good note we did have a conference and he has two weeks to make things good. He was going to return the 16K but we have not recieved it at this time. He has one week left to act and if there is inaction then we start the paper work to get him off the executorship.

Thanks to all who helped on giving sound advice.
Your help is much appreciated.

 

[johngoodboy]

Update Number3

New update. We are now in the process of getting the lawyer off the estate as executor.

The estate has now been notified for an IRS audit.

 

[johngoodboy]

Saga Continues

The Saga continues.
At the first trial hearing the estate lawyer was going to fist fight our lawyer. The judge postponed the case for a month.

The 2nd hearing the estate lawyer had an anxiety attack during the hearing and the judge postponed the case for 90 days.

The a few days after the estate lawyer was at an IRS audit for the estate. Which he agrred to let our accountant handlle the IRS.

We plan to sue the Lawyer and his firm.
Any one ever had any success in suing a law firm?