We want to keep the estate as the responsibility of the executor for as long as possible since as long as it is in this condition the executor is responsible for all expenses incurred with the property. The property was rented (far below fair market value) by the executor, while power of attorney of the property, to his son w/o the permission of the other 2 heirs. He transferred the estate money into his own personal account shortly after the death of the mother and thus did not have to report this money as probatable money. We want to keep the estate tied up in probate as long as possible.
Your summary begs for a lot of additional questions. Part of this appears to be a misunderstanding on your part of how things work. Before someone dies, there IS NO executor. Someone can be "nominated" to be executor. But until a person dies and the court appoints that person, there is no executor. So that suggests that the person was acting under a POA form during the decedent's lifetime. In that position, he would have been obligated to act in the best interests of the decedent, in order to handle his/her finances and perhaps medical affairs.
The agent under the POA form was given his authority by the decedent, and does not need either your permission, consent nor agreement with renting the home or anything else that he does. He is only required to act in the best interest of the principal. It is unclear from your summary whether this happened or not. So you have a question there, for an attorney. If you can prove that the agent was self-dealing, or somehow breached his fiduciary duties, which is not clear from your summary, then you might have an action against him. The problem you have is that YOU cannot bring that action. Only the executor could do so. He is not going to do so himself, so you would need to have him removed as executor and have someone else appointed in order to bring that claim. Keeping the estate open does nothing to help you.
Now, when you say he transferred the estate money into his own personal account, provided you can prove that this was done, you would have a breach of fiduciary duty and self-dealing. My concern is that your brother would have had no authority to do what you are saying he did. The POA terminates upon death. Once the estate is open, the assets in your mother's name alone ARE estate assets. The only way they would not be probate assets is if the accounts were jointly held with the decedent, or if she named your brother as beneficiary. These are fact questions. If they were joint or he was the beneficiary, then the money is legally his, upon your mother's death. The only way out of this is if the accounts were made joint or he named himself as beneficiary, while acting under the POA. Either one would be improper. If this was done by your mother, there is nothing you can do.
In any event, merely keeping the estate open does you no good and serves no purpose. You either have a right to challenge this or not, depending on the facts which you either do not know or misunderstood. You need to retain an attorney to help you investigate this to determine if you have any arguments or if you are completely out of luck. Otherwise, keeping the estate open does nothing.
James Frederick
Your better move would be to try to have the executor removed for benefiting his family members at the expense of the heirs.
This would be the best way to get evrything on the correct path and correct past injustices.
Eric Jerome GoldTrusts AttorneyCalabasas, CACA licensed ·
Mr. Pippen is correct. Why not simply petition to remove the executor for self-dealing? He should be replaced as executor so that the affairs of the estate can be wound up. If his action were inappropriate, based on the circumstances, you'll be able to bring civil action against him. This is based on your few sentences. You should consult with a local probate attorney for a thorough analysis of your situation.
