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Ex-husband takes kids money after death

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My sister passed away 5 months ago and named me as the executrix of her will. She had two children, ages 15 and 18 years. She was divorced and the ex-husband is now the guardian. He has control of over $70,000 of the kids money (college fund, survivor benefits, monthly social security benefits). He recently told me that he has spent ALL this money to pay of HIS debts. I requested that he provide documentation of these expenditures, because I needed it to perform my feduciary responsibilities. He has refused to cooperate. My probate attorney has advised me to turn him over to the D.A. While I would love to see him prosicuted, I worry about how this might affect the kids and our relationship. What are my legal resonsibilities as executrix concerning these funds and are there any other options? I am from Texas and her estate is valued at 1.3 million.


Senior Member
You know, if this was all the money there was, I'd probably go to the DA. But there is a fair bit of money left to protect them, and the $70,000 while a lot of money, is not all that critical in light of the other available assets, and you are being thoughtful, which is wise.

The kids have only 1 surviving parent and likely would be more than angry at anyone who they think may be trying to take him away from them. And they'd likely say the don't care about the money, they want their dad and they'll give him their money. So it's good that you are in charge of the money.

He did breach his fiduciary duty. And I am not sure what that means. I'd discuss this with the lawyer for the estate and perhaps the lawyer will have an equally wise approach. Off hand, I'd consider trying to get from him a promise to repay them the money he took, and in exchange a promise not to sue him, and an agreement from him that he'll never handle any of the kids' money again, but this is not something to do off hand.


MAY 8, 2001


What exactly do you mean by "so that you can perform your fiduciary responsibilities"? Do you have to report something about these funds to the probate court? How soon after she died was the ex-husband given this money?

He may or may not be lying when he says he has spend all of the funds. I think he is just saying that to prevent you from trying to get your hands on it or he possibly resents the fact that you are checking up on his spending.

Don't turn him over to the DA right now (but you may want to consider doing so in the future), since putting him in jail would deprive the kids of a wage-earner/provider. A better option might be to have your attorney file a petition to have someone else (you or anyone else in the family who wants the responsibility) named as the legal guardian or trustee (specifically given the responsibility of handling only the children's monies--even the Social Security monies) while letting the father keep physical custody of the kids.

All you can do is report to the probate court that he has misspent these monies (which is not a reflection on you but it is a very bad refelction on him). If needed, the probate judge or your attorney can subpoena him to produce his checking account statements and cancelled check copies to see how the money was spent over a certain period of time.

Does this ex-husband get anything from the estate?

Will these teens be receiving any additional monies from the estate besides the $70K already received?

If so, then the money needs to be set up in a trust account managed by the trust department of a bank so that the father can not get his hands on this money.

If the estate can aford to replace the $70K that was stolen, then you should do so if possible, so that the kids can still have the opportunity to go to college.

If the estate can not afford to replace the $70K, then file charges to that the father will have to make restitution on at least some of the money if not all of it.

On the other hand, if you want to maintain a decent relationship with the father now, begin to focus in on how you can protect the children. With this estate being as large as it is, you can certainly afford to consult with a family law attorney about how to come up with the best strategy to protect the children's interests.


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By "fiduciary responsibilities", I just meant that, as the executrix, I needed to be accountable for all monies that made up the estate. You are right, all I can do is report to the probate court that he has misspent these monies. The entire estate was left in trust to her 2 kids (I am also trustee of the trusts), so there is no shortage of money, at this time.

The ex-husband, as guardian, receives the kids monthly social security checks ($3,000/month total). Unless I take over guardianship, I don't think there is anything I can do about this, but I will contact an attorney and find out. He received $20,000 in disability survivor benefits, again because he is their guardian, one month after my sister's death. He had control over their college fund, valued at $40,000, 4 months prior to my sister's death. It's apparently all gone.

I assure you, there is no way I will allow this man to get his hands on any remaining money in the estate. I plan to have a promissory note drawn up for the $70,000+ he has spent on himself. In the best interest of the kids, I will probably not go to the D.A.

The kid's trusts state that 1/3 of the funds be distrubted at 25, 30 and 35 years of age. My main concern is their well being, and, of course, I will pay for their college out of their trusts, if I have to.

To complicate things, I just found out my 15 year old niece is 2 months pregnant AND the ex-husband stopped paying the premiums on the kids health insurance shortly after my sister's death 5 months ago! Now, I have the delima of who is responsible for medical expenses, the ex-husband or the trust? My niece is soooo excited about having a baby to take care, i.e. an abortion or adoption are out of the question. No one has approached me for money, yet. I'm not sure what my responsibilities are. Any ideas?


MAY 9, 2001


As far as the guardianship was concerned, I was thinking that maybe if you contacted the Social Security Administration they could give you guidelines on how to/or whether or not this man could replaced as guardian, but of course you should also get the advice of a family law attorney who most likely has been through the same situation before.

Regarding the situation with the niece who is pregnant, I wonder if she knows that she will be receiving the trust funds when she is 25? If she does, then I guess that is okay, but I'm hoping that she is not depending on YOU to provide continual financial assistance for this baby (unless you can afford to do so)! You need to find out from her what the baby's father's intentions are (whether he can afford to or is willing to pay any support monies for this baby, or if she is willing to work at a job to also support the baby). The local family law attorney also may be able to advise you about this, but you should also post this message/situation on the CHILD CUSTODY/SUPPORT message board on this site to see what kind of response you would get there, as it is more likely a family law attorney would see it there.


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Dad IS responsible for the 15 year old's medical bills but not the 18 year old's. He can escape it if he marries her off thus emancipating her.

You can get him replaced as the "representative payee" on the 15 year old's Social Security by calling SSA and filing a complaint and requesting the change. They will probably hold a hearing and check out his records as well as any evidence you may have.

Social Security stops paying at 18 or after graduation from high school whichever comes last.

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