Tags: appointed, attorney, brother, died, executor, father, law, lawyer, legal, probate, scbrmy, sibling, siblings, state, trusts, wills
Can siblings remove another sibling as executor
The state is: SC
my father died in 2001. our brother was appointed executor but has yet to probate the will . he has also recently suffered personal problems related to alcohol and prescription drug abuse and my sister and i suspect that he is mismanaging funds. he has managed to avoid providing our mother with an accurate accounting of the estate but mom hesistates to remove him for fear it "will put him over the edge". can my sister and i have him removed in our mother's best interest?
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- 3 Comments
- He does not have the competency required to be an executor. Does he have a documented history (police record) of arrests for drug or alcohol abuse? This would be cause to get him replaced as executor. She does not need to fear him "going over the edge"--if he does, then so be it, but that is not likely to happen--he is responsible for his own behavior. If you don't do anything, the amounts that the heirs would receive as their inheritance may be seriously affected.
What is the value of the estate?
Do you have documented evidence to verify your suspicions about his mismanagement, or just a hunch? No doubt he thinks the longer he waits, the more difficult it will be for his theft to be discovered.
Are there any outstanding bills that have been paid? Have the funeral bills been paid?
What reason does he give for not probating the will? Normally this is supposed to be done within 30 days after the decedent's death! He has waited far too long to get this will submitted to probate! Start talking to an attorney now to find out what you need to be doing!#1; Thu, 09 Jan 2003 19:39:00 GMT
- since he has neglected to send adequate records to my mom, the only accounting that he has sent has left me with several hunches and perhaps some proof that mismanagement, theft, whatever has occurred. mom paid the funeral bills out of pocket so that they would not be left unpaid for any length of time. he also asked to be paid for doing the estate at the rate most estate attorneys request...my mom only gave him 10 thousand but he is submitting "bills"for accounting costs! his excuse for putting it off is being blamed on the family trust that my dad requested...bro says it makes it more difficult. claims to have spoken to an attorney but says attorney billed him but didn't give detailed bill...also he submitted a handwritten document for my mom to sign for probate stating that legal and accounting fees amount to almost 8 thousand dollars when the amount was only around 3 as of october 31...he also borrowed money from mom to pay his late taxes and penalty...also has requested disbursements be made to the kids ahead of time for tax advantage...all of this combined with drug and alcohol history lead me to believe that he is covering up. mom gave him until tomorrow to account...she plans to ask him straight out if he is hiding something...my sister and i want him out of it before he gets the estate any more messed up...mom is supposed to survive on interest from family trust investments but has not seen interest...he says it needs to be invested? the estate is rather sizable and sis and i stand to lose but we are more concerned with how mom is supposed to exist.#2; Thu, 09 Jan 2003 20:41:00 GMT
- So sorry about the mess that your brother has left things in.
From what you have described, you have more than enough grounds to start the process of getting him removed as executor, and now I get the surprise that he is also trustee! Have the trust beneficiaries been provided with a copy of the trust? If not, then they have the right (under a federal law called the UNIFORM PROBATE CODE) to request a copy of it (and an accounting for each year the trust has been in existence) by sending the trustee a certified letter making such a request (actually it's better if you have your attorney make the request in your behalf, because that way the trustee is less likely to ignore the request).
You also need to get a second opinion from a probate attorney about the pay rate for executors in South Carolina--it is possible that your mother may have paid him too much--law says that the rate is up to 5% of personal property plus 5% of proceeds of sold real estate plus 5% of income earned by the estate (this definition is so complicated that I have no idea of whether personal property includes the cash assets)--if he was paid too much then he either needs to repay the estate or have the replacement executor deduct the amount due from the brother's share of the estate. But if the estate value is high enough, then I guess he might qualify for the $10K, but the basis for him to be compensated should NOT be based on what mother thinks an attorney would charge.
His excuses don't stand up to examination, although I must admit he is a good enough liar to be believed by someone who doesn't know the facts. He may have authority as trustee to decide how trust money is invested, but that doesn't have anything to do with how the trust is handled right now--there are specific instructions in the trust about what he should be doing and when he should be doing it. There may be some matters in the trust that might overlap with probating the estate--but getting the estate probated and handling the trust are 2 separate, individual matters that must be handled separately.
If he didn't insist on backup billing documentation from the attorney--he can still request that information from the attorney. Requesting the disbursements ahead of time also seems highly improper. Do you all even know the name of the bank where the trust account money is being held? Ask the bank or get a copy of the trust to find out if the trust names an alternate/replacement trustee (if the bank has a trust department, brother could probably ask someone in the trust department to handle this money if he doesn't want to do it). You need to find out exactly what the trust says about how your mother is supposed to be receiving her income, and brother should be cooperative in providing that information--if not, then it shouldn't be too difficult to get the replacement trustee to provide that information or to ask the court to get information about what your mother needs to do to get access to her money.
Good luck in getting this mess straightened out--now will you all have to spend your money to hire an attorney to help you straighten out a situation that should have been much simpler?
DANDY DON (tiekh.willstrusts.itags.org.yahoo.com)#3; Fri, 10 Jan 2003 15:28:00 GMT