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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 100602
Experience:  Fully licensed attorney in Texas in private practice.
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I am an equal beneficiary of an estate along with my two sisters.

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I am an equal beneficiary of an estate along with my two sisters. It has been over 3 years since my aunt's passing and the executor, my older sister, has indicated that she deserves all the estate and admits to using most of it. What can I do? The estate was a little over half a million dollars. Is there any way she can be held accountable for this? She has broken all ties with family for the last six months and will not speak to either the lawyer or accountant that handled the will.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Can you please tell me:

1) Is there a will in place that mandates who receives what, or not?
2) Why has it taken her three years to handle the estate?
3) Why has nothing been done sooner?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 3 years ago.

There is a will and it states that the three sisters and one niece (since deceased) split all assets 25% each.


My older sister, the executor, would push off all questions with I'm busy but I work on it when I can. Don't worry you'll get your share soon. We trusted her as we've always been very close up until I contacted the accountant on my own last year. That's when the hostility began.


 


I finally was able to get the name of the accountant, the third one she used, and contacted him myself in October last year. He said she was very lax and difficult to work with but was able to file the tax return the end of last year. As a result there was a big penalty to be paid. She doesn't answer phone calls, etc from any of the family or the lawyer or accountant. She just ignores everything including certified mail.


 


I contacted the state to find out the status of the filing of the estate tax and was told she should get notified within 30 days.


 


 

Thank you for your clarification, J.

As an executor, she has certain executor duties that she must follow, which include:

Manage the Estate
Take Care of Tax Matters
Pay the Debts
Distribute the Assets
General Probate Matters

In performing these duties which the executor assumes, they must generally act with the care and skill which a person of ordinary prudence would exercise under the circumstances. See In re Koretzky, supra, 8 N.J., at 524.

She has not done this here, and has burned through the estate.

Now, someone in your situation may wish to do the following - file a Motion to Remove Executor from the estate. See here. Once the Court has seen that she has dragged out the estate, has spent the money, and otherwise, it should remove her and appoint someone else to distribute the estate. The Court may also order her to pay you for any money spent that she did not. If not, then you may have a civil suit against her for negligence and fraud.

Negligence cause of action has four elements: (1) duty of care, (2) breach of duty, (3) proximate cause, and (4) actual damages. Weinberg v. Dinger, 524 A. 2d 366 - NJ: Supreme Court 1987.

The five elements of common-law fraud are: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages. Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624-25, 432 A.2d 521 (1981).

May I recommend the NJ Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Good luck.

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Customer: replied 3 years ago.

If there is nothing left of the estate, is it worth it to pursue this any longer? What would be the repercussions for my sister the executor? How expensive and long would the process be?


What would the purpose of removing her as executor be if there is nothing left of the estate? Money is very tight for me and my other sister so we would have to have a good reason to fight her in court.

J,

Thank you for your follow up.

If there is nothing left of the estate, is it worth it to pursue this any longer?

If you wish to get a civil judgment, you may want to pursue this in CIVIL court, yes. Even if you never get paid back what was lost 100%, you may at least get something back by forcing the judgment on her assets.

What would be the repercussions for my sister the executor?

Admonishment and possibly fines by the probate court. If pursued in civil court, then a judgment for any money that would have been yours which was lost.

How expensive and long would the process be?

To remove her as executor - quite fast.

To sue her in civil court - it may be months, if not years.

The attorney may take this on a contingency basis, meaning they do not get paid unless you do. Usual set up is their take is 33% settlement, 40% win at trial, 45% at appeal; plus some office costs. Everything is negotiable.

What would the purpose of removing her as executor be if there is nothing left of the estate? Money is very tight for me and my other sister so we would have to have a good reason to fight her in court.

Well, in order to sue her in CIVIL court, the PROBATE court first has to find her having defrauded/been negligent with the estate. The probate court's finding may then be used in civil court.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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