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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 36940
Experience:  Texas lawyer for 30 years in Estate law
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My brother took my elderly, trusting, recent stoke victim

Customer Question

My brother took my elderly, trusting, recent stoke victim Mother on the verge of inheratingn several hundred thousand to an attorney to file her will. The will named htis brother at sole executor and myself, Power of Attorney and a back-up executor should he resign or die. My Mother was unaware that my responsibilities ended upon her death and treated me as co-executor. The will was vauge, to say the least, essentially giving my brother final say over distribution.
I never saw the will until after Mom's death so I was very surprised. She lived with me her final 5 years. In those 5 years her health at times required a lot of care with I solely provided (I didn't mind in the slightest). For one summer she rarely left her out of her quarters (very nice area, garden level) I took her to all her medical proceedures, fed her every meal, etc. Brothers did not help with it even once.
Before she moved she downsized "selling" one bedroom set ($700) to sole-exec and dining set to another brother ($1,800) with understanding those amounts would be deducted from their distribution.
It was known that china, silver and jewelry would be split between my sister and me. The jewelry was appraised at less than $3,000.
About six weeks before her death, she told me everything besides the money would go to me because "It's not fair you do all the work and they do nothing" She said all the boys want is money and they'll get their share.
Withing one week after her death, sole-exec orders me to get appraiselles on ching, silver, jewelry and I told him what Mom had said. He was executor for 9 years and never asked her about this or did and didn't like the answer.
In the final distribution he did not deduct the furniture from his and other brother. He took a pendent that I gave to be shared between the 3 brothers and gave it to the other brother. This brother was not to be given to him solely and was know by sole-exec. Now he won't resturn it to me.
Can I file paperwork to ask the court to disqualify him? He only discussed all of this with the other two brothers. It is as if the sisters don't exist. He accepted the pendent knowing he was giving it to third bro, a strict condition that he do that. He won't discuss it with me.
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you today.You can seek removal of the executor through the probate court.You may have great facts to do so especially if fiduciary duties to the heirs have been breached.

Here is the law for removal..

§ 113.035¹

Petition for appointment of personal representative and probate of will

Any interested person or executor named in the will may petition for the appointment of a personal representative and for the probate of a will. The petition shall include the following information, so far as known:

(1) The name, age, domicile, post-office address, date and place of death, and Social Security account number or taxpayer identification number of the decedent.

(2) Whether the decedent died testate or intestate.

(3) The facts relied upon to establish venue.

(4) The name and post-office address of the person nominated as personal representative and the facts that show the person is qualified to act.

(5) The names, relationship to the decedent and post-office addresses of persons who are or would be the heirs of the decedent upon the death of the decedent intestate, and the ages of any who are minors.

(6) A statement that reasonable efforts have been made to identify and locate all heirs of the decedent. If the petitioner knows of any actual or possible omissions from the list of heirs, the petition must include a statement indicating that there are omissions from the information relating to heirs.

(7) If the decedent died testate, the names and post-office addresses of the devisees, and the ages of any who are minors. If the will devises property to a person who did not survive the decedent or who is otherwise not entitled to receive the devise, the petition must include a statement explaining why the devise failed. If the petitioner knows of any actual or possible omissions from the list of devisees, the petition must include a statement indicating that there are omissions from the information relating to devisees.

(8) The name and post-office address of any person asserting an interest in the estate, or on whose behalf an interest has been asserted, based on a contention that:

(a) The will alleged in the petition to be the will of the decedent is ineffective in whole or part;

(b) There exists a will that has not been alleged in the petition to be the will of the decedent; or

(c) The decedent agreed, promised or represented that the decedent would make or revoke a will or devise, or not revoke a will or devise, or die intestate.

(9) The name and post-office address of any person asserting an interest in the estate, or on whose behalf an interest has been asserted, based on a contention that a parent of the decedent willfully deserted the decedent or neglected without just and sufficient cause to provide proper care and maintenance for the decedent, as provided by ORS 112.047 (Forfeiture of parents share by reason of desertion or neglect).

(10) Whether the original of the last will of the decedent is in the possession of the court or accompanies the petition. If the original will is not in the possession of the court or accompanying the petition and an authenticated copy of the will probated in another jurisdiction does not accompany the petition, the petition shall also state the contents of the will and indicate that it is lost, destroyed or otherwise unavailable and that it was not revoked.

(11) A statement of the extent and nature of assets of the estate, to enable the court to set the amount of bond of the personal representative. [1969 c.591 §83; 1973 c.506 §19; 1991 c.704 §1; 2003 c.395 §10; 2005 c.741 §4]

Expert:  RayAnswers replied 1 year ago.

You can do this by letter written tot he judge setting out the facts and seeking removal referencing the law above.Ask t he court to set the matter for hearing.This allows all t he heirs to testify and for you to seek removal in person.

I appreciate the chance to help you today.Please let me know if you have more follow up.Thanks again.

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