Relative is the executor - suspicious of actions

[sue1anne]

What is the name of your state (only U.S. law)? Oregon

A cousin has been appointed the executor of my father's estate. I flew to visit with my father a few days before he passed away. He had been placed in hospice and taken off dialysis so I knew he wouldn't survive long and I needed to get there quickly. After he passed away two days after I arrived, I asked my cousin if we should go over the will, assets, etc... since I was in town and all other arrangements for funeral and burial were made. My cousin insisted I not see the will and did not want to discuss any of my father's assets, funeral planning, etc... with me. She was very vague on how much my father had left. Four years ago when he moved in with them he had over a quarter of a million dollars in bank accounts, stocks and assets. He also retired from the Air Force and Civil Service and had nearly $5000 a month coming in each month. Now she is claiming he may have only $1500 in the bank and all other assets are gone. I have a hard time believing this. I don't care if I get anything in the will, however being an only child I'd like to get what was intended for me. She also said I may have to pay some funeral expenses since the life insurance was borrowed on.

I have an $8000 IOU he sent me about a year ago for some stocks he sold that we jointly owned. He said to get the $8000 from his estate. Now I'm wondering if there will be anything to claim that against. How do I claim that against his estate if there is anything left? I am also the beneficiary of his life insurance policy, and my cousin is supposed to send me the death certificate.

Should I be proactive and consult an attorney or wait and hope she's being honest and informs me of the will and any mention of me in it. My father only passed away on the 25th of January so it hasn't been long. I just wonder about the vague comments and odd amounts stated by her.

Thanks for any advice.

 

[seniorjudge]

Should I be proactive and consult an attorney...

Yes. Immediately.

 

[Dandy Don]

When you get an attorney, also ask him whether you need to find out whether this cousin had also been granted a signed power of attorney giving the cousin legal authority to handle your father's finances while he was still alive. If the cousin had POA, he could have abused it by changing the beneficiary designation on the insurance policy from your name to someone else's, but I sure hope that cousin didn't do that.

 

[sue1anne]

Relative is the executor - suspicious of actions (follow-up)

So before I could get an attorney my cousin tried to empty the bank accounts. She wrote me to tell me she couldn't get access to them because they were frozen. She has now involved her own attorney.

I sent a letter to this attorney after getting her contact information. I have two IOU's from my father for $8000 each. He lost a lot of money in the stock market and intended to leave me some of those stocks. (This was in 2009, and the IOUs are dated then). I have not heard back from her attorney. I did mention them to my cousin when I visited my father last week. Now that they are aware of the IOU's, which I don't think were mentioned in the will, are they obligated to honor them? They were not notarized because my father was in a home for the elderly, but he did have them witnessed by an RN.

My question is how does this affect the distribution of assets in his will? I've found out that I am in the will, along with my son, my cousin (the executrix) and her two kids. I don't know the details still, so I don't know if it's divided by percentages or how he wanted everything distributed.

Also, will the attorney fees be taken from the estate? What about the burial costs (which the cousin took care of). I have not received any death certificates yet, but she said she sent me two on Monday.

Thanks again.

 

[Dandy Don]

Attorney fees will be deducted from the estate. Your attorney can advise you how to file a claim with the executor for the IOU's, and they will be paid ONLY if there is enough money in the estate to pay them.

 

[sue1anne]

I expect the attorney fees to be deducted from the estate, I'm confused on how assets are distributed and when the IOUs factor in if there is enough money left to pay them.

I am the beneficiary on the life insurance policy. Do I write VA for the claim and give the money to the estate, or does the executrix take care of that also. Since I'm the only beneficiary can she put any money from the policy in to the estate to be divided among the heirs?

Sorry, I guess what I'm trying to ask is in what order does she pay out to heirs, where does the IOUs factor in the mix, and do I need to turn the life insurance money over to her if I collect it.

 

[anteater]

If you are the beneficiary of the life insurance, you make the claim and it is your money.

Regarding the IOU, you are a potential creditor of the estate. You make a claim against the estate:

115.005 Presentation of claims; time limitations. (1) Claims against the estate of a decedent, other than claims of the personal representative as a creditor of the decedent, shall be presented to the personal representative.
(2) Except as provided in subsection (3) of this section, a claim is barred from payment from the estate if not presented within the statute of limitations applicable to the claim and before the later of:
(a) Four months after the date of first publication of notice to interested persons; or
(b) If the claim was one with respect to which the personal representative was required to deliver or mail a notice under ORS 115.003 (2), 30 days after a notice meeting the requirements of ORS 115.003 (3) is delivered or mailed to the last-known address of the person asserting the claim.

115.025 Form of claims. Each claim presented shall:
(1) Be in writing.
(2) Describe the nature and the amount thereof, if ascertainable.
(3) State the names and addresses of the claimant and, if any, the attorney of the claimant. [1969 c.591 §142; 1973 c.506 §31]

115.035 Waiver of defect or insufficiency. A defect of form of a claim timely presented may be waived by the personal representative or by the court. [1969 c.591 §143; 1973 c.506 §32]

115.045 Written evidence of claim. When it appears that there is written evidence of a claim that has been presented to the personal representative, the claimant, upon demand by the personal representative, shall produce the evidence or account for its nonproduction. [1969 c.591 §144]

Frank opinion is that the executor will probably deny the claim and you will have to argue your case before the court.

The heirs do not receive anything until all the expenses of administering the estate are paid and all legitimate creditors are paid.

115.125 Order of payment of expenses and claims. (1) If the applicable assets of the estate are insufficient to pay all expenses and claims in full, the personal representative shall make payment in the following order:
(a) Support of spouse and children, subject to the limitations imposed by ORS 114.065.
(b) Expenses of administration.
(c) Expenses of a plain and decent funeral and disposition of the remains of the decedent.
(d) Debts and taxes with preference under federal law.
(e) Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent.
(f) Taxes with preference under the laws of this state that are due and payable while possession of the estate of the decedent is retained by the personal representative.
(g) Debts owed employees of the decedent for labor performed within 90 days immediately preceding the date of death of the decedent.
(h) Child support arrearages.
(i) The claim of the Oregon Health Authority for the amount of the state’s monthly contribution to the federal government to defray the costs of outpatient prescription drug coverage provided to a person who is eligible for Medicare Part D prescription drug coverage and who receives benefits under the state medical assistance program or Title XIX of the Social Security Act.
(j) The claim of the Department of Human Services for the net amount of assistance paid to or for the decedent, in the following order:
(A) Public assistance, as defined in ORS 411.010, funded entirely by moneys from the General Fund; and
(B) Public assistance, as defined in ORS 411.010, funded by a combination of state and federal funds.
(k) The claim of the Department of Human Services or the Oregon Health Authority for the care and maintenance of the decedent at a state institution, as provided in ORS 179.610 to 179.770.
(L) The claim of the Department of Corrections for care and maintenance of any decedent who was at a state institution to the extent provided in ORS 179.610 to 179.770.
(m) All other claims against the estate.
(2) If the applicable assets of the estate are insufficient to pay in full all expenses or claims of any one class specified in subsection (1) of this section, each expense or claim of that class shall be paid only in proportion to the amount thereof. [1969 c.591 §152; 1969 c.597 §279; 1973 c.402 §32; 1979 c.684 §17; 2001 c.316 §1; 2001 c.487 §13; 2001 c.900 §19a; 2005 c.754 §3; 2007 c.26 §1; 2009 c.595 §81]

 

[sue1anne]

Thank you! This was very helpful!

If you are the beneficiary of the life insurance, you make the claim and it is your money.

Regarding the IOU, you are a potential creditor of the estate. You make a claim against the estate:




Frank opinion is that the executor will probably deny the claim and you will have to argue your case before the court.

The heirs do not receive anything until all the expenses of administering the estate are paid and all legitimate creditors are paid.

 

[sue1anne]

Paperwork from attorney received - questions

I received a copy of the will and a letter from my cousin's attorney. They are asking for Unsupervised Administration and sent forms to be signed. Is this something I want to do? The distribution doesn't mention anything about the IOUs I submitted to the attorney and my cousin. Should it or is this a separate matter? I don't really understand "Unsupervised Administration". Will it affect how the IOUs are handled? The will states I get 10% of the estate, as does my son, the grandneice and grandnephew. The remainder goes to my cousin. The entire estate is only about $60,000.

Thank you.

 

[anteater]

I don't know Oregon specifics, but most states provide for varying levels of court involvement during the estate administration process. Supervised administration means that the court will be more involved and supervise the executor more closely. In some states, that could mean that the executor must have every transaction approved by the court before undertaking the transaction.

Unsupervised administration generally means that after the will is admitted, the executor appointed by the court, any required notices sent, and inventory filed, the court steps out of the way and allows the executor to administer the estate until the estate is ready to be closed.

Supervised administration is generally more expensive since the executor and the estate attorney spend more time in court.

The distribution doesn't mention anything about the IOUs I submitted to the attorney and my cousin.

What do you mean by the "distribution"? The distribution mentioned in the will?

You need to remember that, in addition to being a beneficiary, you are a creditor. The IOU you mention is evidence of a debt owed to you and you are making a creditor claim against the estate. If that claim is accepted as legitimate, then it would be paid before any distribution to beneficiaries is made. (I am not commenting on the validity of your claim since someone would have to see all the details of the transaction and the documents.)

You have some leverage. Ask for an acknowledgement of your claim before you consent to unsupervised administration. (Given what you have written, don't be surprised if your claim is eventually denied by the executor and you have to fight for it in court. But, for now, at least try to get the executor and estate attorney to acknowledge that your claim is in proper form and has been received.)

 

[Dandy Don]

You need to be consulting with a probate attorney to help guide you through the process of answering the myriad of questions you will have.

 

[sue1anne]

What do you mean by the "distribution"? The distribution mentioned in the will?

You need to remember that, in addition to being a beneficiary, you are a creditor...

You have some leverage...

Yes, I keep forgetting I'm not an heir in relation to the IOU. I guess I have to change my way of thinking. Where can I get a form to use for the claim? Can I write my own using MS Word and use a template from another state? I can't find one for Indiana. (I'm living in Oregon, but the estate is being handled in Indiana.)

You're right. I do have some leverage. I need to remember beneficiary and creditor is different.

 

[anteater]

(I'm living in Oregon, but the estate is being handled in Indiana.)

Uh, that's sort of a major point that you left out. Anything I quoted from the Oregon statutes above is no longer operative.

If I recall, in Indiana, you file your claim directly with the court (probably with a copy to the executor). Make a call to the clerk of the court to see if they will give you some guidance.

 

[sue1anne]

Uh, that's sort of a major point that you left out. Anything I quoted from the Oregon statutes above is no longer operative.

If I recall, in Indiana, you file your claim directly with the court (probably with a copy to the executor). Make a call to the clerk of the court to see if they will give you some guidance.

Sorry, I didn't know there was a difference and if it depends on where I live or where the probate occurs.

I did consult an attorney for a little guidance and I did exactly as you suggested. Claim against the estate will be filed in the Indiana county cited on the Petition for Probate letter I received, with a copy going to the Personal Representative (executrix/cousin). I just need to make a quick phone call tomorrow to see if there are any associated fees for filing the claim.

I appreciate all the great advice. I think I'm good. Thanks for the help!

 

[sue1anne]

State: Indiana

The claim letter was returned by the court stating there was no estate on file for the number I used. I got this number from my cousin's attorney stating she would like Unsupervised Administration, and Notice of Probate. The documents refer to Porter County, IN, however my father died in Lake County, IN. The attorney has offices in both counties. Is that why they filed in Porter County?

How do I know when the estate has been filed so I can send another claim, as suggested by the court clerk?

Still no word from the executrix on the estate status or IOU copies I sent her. I haven't seen any newspaper notices for claims yet. What is the time limitation for claims in Indiana? I intend to file the claim in Superior court again, with copies and a signature required letter to my cousin (executrix) this time. Last time I just mailed copies. Anything else I should be aware of? Would it be beneficial to send the claims against the estate through my own attorney?

I have not returned the Request for Unsupervised Administration. Can she file the estate without it? So far it appears all communication has stopped and my letters and emails go unanswered.

Thanks