Distribution of Assets

[djohnston]

My sister has been handling my father's estate. She is co-executrix with my other sister (who has just sat back and let the other sister do everything). The estate has closed, but the sister who has been handling the estate won't distribute the remaining assets. Technically she should have distributed them prior to the estate closing, but the accountant that she hired told her to hold back 20% for probate fees, which we found out that there were none. Short of hiring an attorney (which would eat up my remaining share) is there any recourse I can take?

 

[advisor10]

10-24-2001

DEAR DJOHNSTON:

You should have mentioned what state this applies to.

Are you saying that the 20% that she held back is the only assets that are left to be distributed?

Her accountant may have advised her poorly, as to hold back funds is improper if not illegal. Executor fees are set by state law and those fees should have been determined and paid before the estate closed. The executor fee will certainly be a lot less than 20%, and the excess should probably be distributed to the other heirs or at least distributed in accordance with the instructions of the will.

You should consult with a local attorney to find out whether you need to file a petition with the court to have the probate re-opened to settle this matter. The fee for this will probably turn out to be less than you think, but the only way you will find out is to ask. The court will certainly be interested in hearing about this unusual situation. If the probate case is not reopened, this executrix might be able to get away with keeping the entire amount, which seems like a little bit of stealing to me.

SINCERELY,

[email protected]

 

[djohnston]

Thank you so much for your quick response. This has occurred in Illinois. The money that she held back was not for executor fees, she was told that we would have to pay the court probate fees. We did not. Now she is dragging her feet in distributing the money. The estate has closed. Technically, she should have distributed this money prior to the estate closing. But we thought we would owe money to the court. So we all trusted her to distribute the money once the estate closed. It's only about $3,000.00. I need the money and am hesitant to get a lawyer, because all the remaining money will go to him.

 

[advisor10]

10-24-2001

DEAR DJOHNSTON:

This IS a sticky situation. Don't be hesitant about getting a lawyer to do this--because there is no way around it--you need to talk to at least 3-4 or more attorneys to get an estimate from them on how much they would charge to do this relatively simple task of petitioning the court to reopen this probate case to handle the official distribution of the remaining money.

Executrix is not going to be motivated to do anything until she is officially notified that there will be a court hearing about this matter. Do you want to sit around and WAIT AND HOPE forever that you will get this money, or do you want to be pro-active and take steps to move things along and hurry things up?

Contact the local bar association and ask if there are any attorneys that do pro-bono ('free") work, or contact the law department of a university to ask if they do inexpensive or free legal counseling. Or find an attorney with a prepaid legal service and ask if they could help you (they charge about $25-$35 per month). If you are honest enough to mention to the attorney that you can't afford high legal fees, they will usually try to accommodate you by working out a lower fee rate.

SINCERELY,

[email protected]

 

[djohnston]

Thank you.

Yes, you're right. I can't sit around and do nothing. That's already being done. Thank you for your advice. I'll will make some calls.