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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 23135
Experience:  14 yrs estate law, real estate. Wills/Trusts/Probate
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My cousin is named in the will as the executor. A day after

Resolved Question:

My cousin is named in the will as the executor. A day after my mother passed away he showed up at the apartment with a copy of the will and the death certificate and changed the locks on the apartment.

The will was not declared valid for a month later by the probate court, waiver were sent to all the heirs and the will was declared valid and he was appointed executor.

My questions is this: Did he have the legal right to change the locks before the will was validated?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.
Hello and welcome! My name is XXXXX XXXXX I will try my level best to help with your situation or get you to someone who can.
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Did he have the legal right to change the locks before the will was validated?
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From a purely legal perspective, no. He wouldn't have any legal authority to act on behalf of the estate until he was formally appointed executor by the probate court judge. While he was named in the will, that is just a nomination that is not legally binding until the judge approves him to be executor. The judge could have rejected his petition if he were disqualified for some reason (i.e. felon with embezzlement conviction) and someone else would have had to file a petition to be the successor executor.
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But from a practical matter, this is most often the way it is done and if he was taking action to secure the assets of the estate, then it is unlikely he would be denied appointment for these actions.
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Thanks
Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 23135
Experience: 14 yrs estate law, real estate. Wills/Trusts/Probate
Barrister and 5 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

If he has done something illegal - and I assume the charge would be tresspassing - wouldn't the police have to accept a report from me and he would be taken to court?


 


>But from a practical matter, this is most often the way it is done and if he was taking action to secure the assets of the estate, then it is unlikely he would be denied appointment for these actions.


 


Would the courts refuse to have a court hearing because he can claim he is doing his duty from a practical point of view?

Note that the deceased gave me the keys to the apartment and that the will leaves everything in the apartment to me


 


 

Customer: replied 1 year ago.

I should add that there was no inventory of the contents of the apartment until the will was verified and some items in the apartment are missing although since there was no inventory I can not prove this


 

Expert:  Barrister replied 1 year ago.

If he has done something illegal - and I assume the charge would be tresspassing - wouldn't the police have to accept a report from me and he would be taken to court?

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The police would accept a criminal complaint from you but it would then go to the DA to determine if any actual criminal charges would be filed. But it is likely that the DA would refuse to file criminal charges and consider this a civil matter.

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Would the courts refuse to have a court hearing because he can claim he is doing his duty from a practical point of view?

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If you are talking about in a criminal court, then if he is charged by the DA, the court would have to hear it. If you are talking about the probate court, I would opine that they would simply admonish him for acting too quickly and let it go at that.

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I should add that there was no inventory of the contents of the apartment until the will was verified and some items in the apartment are missing although since there was no inventory I can not prove this

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I hate it that this has happened, but without proof that the items were there it will be hard to hold the executor accountable. That is why testators have to name someone that they can trust to carry out their wishes and not loot the estate. This happens a whole lot more often than you would think because often executors feel that the deceased owed them for various things throughout their lives and when presented with this opportunity, many can't resist.

.

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Thanks

Barrister

Customer: replied 1 year ago.

One last question I assume when you mean the a "civil matter" you mean


the probate court, right.


 


If I submit the complaint to the probate court are you certain that he would just get an admonishment. Have there been instances where something more could happen to him, such as being removed as the executor?

Expert:  Barrister replied 1 year ago.

One last question I assume when you mean the a "civil matter" you mean the probate court, right.

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Correct, to be very blunt, prosecutors are often either overwhelmed with cases or lazy and if they can get out of filing a criminal case and pawn it off on the civil courts, they will do so.

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If I submit the complaint to the probate court are you certain that he would just get an admonishment. Have there been instances where something more could happen to him, such as being removed as the executor?

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Since I am not the judge, I can't be certain of anything in any case....that is the inherent risk involved in legal cases. I can just give you my best guess based on my experience in practicing probate law. But in cases where it can be proven that the executor stole something, yes, they can be removed. However when there are just allegations without any proof, I would opine that a judge would give the executor the benefit of a doubt and not remove them.

.

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Thanks

Barrister

Customer: replied 1 year ago.

Thanks. Excellent answer based on your experience.

Much appreciated

Expert:  Barrister replied 1 year ago.
You are very welcome. Glad I could help.
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Thanks
Barrister

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