Estate Law Questions? Ask an Estate Lawyer.
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No, the executor cannot cut someone out of a distribution. If the will requires an equal distribution, then the executor must distribute the assets equally according to the terms of the will. If the executor fails to do so, then the executor is in breach of duties owed to the estate and beneficiaries to comply with the terms of the will and do what's in the best interest of the estate and beneficiaries. The executor could be held personally liable for such a breach.
Does this mean that the executor must pay my husband the amount of money that he should have received?
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What does personally liable mean?
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In what respect?
Is the personal liability of the executor a civil or criminal issue
It is a civil matter, not a criminal matter. If he doesn't follow the terms of the will, then the executor can be responsible for that wrongful action, meaning that the beneficiary harmed as a result of the executor's action can sue the executor personally to receive compensation -- either getting the property the beneficiary should have received or cash that is equal in value to that property.
Is the executor responsible for attorney fees for both sides of the civil action if he is the wrongful party?
In most cases where a beneficiary must force the executor to do what is required by law, then the probate code allows for an assessment of attorney fees against the personal representative (the executor).
Can the executor file for bankruptcy and evade repayment of my husband's share of the estate?
Unfortunately, yes, the executor could file for bankruptcy to discharge any liability in many cases. However, you can argue that the breach was so reckless and with disregard to the estate and beneficiary's rights that it amounts to "defalcation," which then means that it cannot be discharged. If it's just normal garden variety breach of duty, then is can be discharged in bankruptcy. It has to be pretty severe to not be dischargeable.
Are there any consequences to the attorney for the executor if he has recommended this course of action to the executor? We are concerned because of the length of time involved since any response from the attorney to us.
If the attorney is giving advice to breach fiduciary duties, then the attorney could also be held liable for malpractice and ethical complaints could be made against the attorney.
We have an email from the attorney where he says that by law he must only represent the executor, not the beneficiaries, in Texas. I said to him the there should never be a conflict between the 2, if the executor was following the law, right? He did not reply. This is what started our concerns.
He does represent the executor and not the estate. However, he cannot give advice to break the law.
That essentially means he cannot advice the executor to do something that is in the executor's best interest and not in the best interest of the estate.
That means the attorney cannot represent both the executor personally and as the executor for the duration of the life of the estate?
No, the attorney could also represent the executor in an action for breach of fiduciary duty in many cases, but if it comes to that, many attorneys will step aside because there is so much room for a conflict of interest to arise. It depends on the exact facts of the case, what the attorney has done, the advice given, and many fact-specific factors. Thus, there's no way for me to say whether the attorney could continue to represent the executor or not. But, as noted, in many cases the attorney will refuse to represent the executor in such a case.
This answers all of my questions, thanks a lot. We remain very worried about all of these issues!
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