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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11331
Experience:  Licensed Texas General Practice Attorney
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Colorado, A will naming 4 heirs, 3 at 30% and 1 10%...

Resolved Question:

Colorado, A will naming 4 heirs, 3 at 30% and 1 10%... 1 of the 30% heirs has taken 100% of the proceeds from a sale of house, as well as taking all of the 4 out of bank account (100,000) and valuables from safety deposit box.
I am trying to help my elderly aunt who has nothing...

what are her options? Can State Law - do anything to help her?
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. It's not unusual that the police won't do anything, as often they will say that this is a civil matter in situations such as these. That is, ultimately this is an issue for the probate court to decide. If there is a will, but it has not been filed for probate in the probate court, that will have to be done. Someone who is named as executor will have to do so, or if this sibling was named as the executor, someone else can file.

Customer:

it seems like a lot of $s that have effectively been stolen from the other heirs

ScottyMacEsq :

the fact that the sibling has taken affirmative steps to reduce the value of the estate can make it such that he or she will have to pay the costs of administration, as well as potentially having to pay sanctions.

ScottyMacEsq :

That's not unusual.

Customer:

what about fiduciary responsibility

ScottyMacEsq :

Unfortunately in situations such as these, with property, money, etc... siblings will turn against each other.

ScottyMacEsq :

There's a fiduciary responsibility to heirs IF the person is named executor.

ScottyMacEsq :

(or if that person is a trustee of a trust)

Customer:

the will specifically states property division

ScottyMacEsq :

I understand.

ScottyMacEsq :

The theory to recover is not based on fiduciary responsibility, but rather that this person was not entitled in the first place to the entire amounts.

Customer:

he is the representative

Customer:

for the estate

ScottyMacEsq :

In that case (like I said above) "There's a fiduciary responsibility to heirs IF the person is named executor. "

ScottyMacEsq :

So if there is a fiduciary relationship there, then there would be a positive case to go against him for that.

ScottyMacEsq :

But that's assuming that he's already been named that by the probate court and sworn into that role.

ScottyMacEsq :

Just by being named representative / executor in the will, does not automatically make him the executor. He would still have to be sworn in

ScottyMacEsq :

but assuming that he was sworn in, he does have a fiduciary duty to the other heirs.

Customer:

if the will states the division, and the $s are gone then what

ScottyMacEsq :

If the division was to include the monetary assets, and he spends them all, the court can assess that division against the remaining assets. That is, he wouldn't get anything of the real estate, etc... The court could also order him to return the property taken, and if he fails to do so, it can hold him in contempt.

ScottyMacEsq :

The other heirs can also sue him for their share of the estate, the fraud, conversion, and incidental fees (attorneys fees, costs, etc...) for what he has done.

ScottyMacEsq :

That being said, you need to contact an attorney in the area (where the probate case is filed) that deals with probate cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

Customer:

he sold house that went into the bank account, and that is the $$$s taken about 150K in total.

ScottyMacEsq :

The reason is that these cases are pretty complex and require a higher degree of pleading and proof than what can typically be done on your own. Like I said before, in a breach of fiduciary responsibility case you can get attorneys fees paid as part of the damages.

Customer:

they have a copy of the Will....

ScottyMacEsq :

Wow. I am sorry to hear that. Again, there is absolutely a lawsuit here, no question. If the police are not going to get involved, unfortuantely there's no way to force them to.

Customer:

all three were named 'representatives'

ScottyMacEsq :

I would hope that as the representative he would have a copy of the will... He has to administer the will unless it is successfully challenged. Otherwise, the court can remove him, assess damages against him, etc...

Customer:

ALL three....

ScottyMacEsq :

But the court only swore him in as the representative?

Customer:

no one sworn in.. but docs are filed and there is case no

Customer:

number

ScottyMacEsq :

I see. Like I said before, until the court swears him in, he's not officially the representative, and there can be an objection to him being sworn in based upon his actions up to this point. Again, I would highly suggest talking with an attorney that handles probate cases, because at this point it may be easier to undo any damages already done (than to wait until he is officially named representative and then try to remove him from that role).

Customer:

if not representative, what happens with $$s he took

Customer:

If he is not sworn in, .. what happens

ScottyMacEsq :

The representative named has the ability to compel anyone with these assets to remand them to the representative's care and custody, pending creditor claims, etc...

Customer:

not take all though right?

ScottyMacEsq :

If he does not give up these assets, the court can order him to, and if he still doesn't, the court can hold him in contempt, put him in jail., etc...

ScottyMacEsq :

The representative can take everything at the beginning, and pay out to heirs as the case progresses or is finalized.

Customer:

oh.. so what you are saying is if one of the others can get sworn in fast... now, then the 'official' rep

ScottyMacEsq :

(depending on what creditor claims come up)

ScottyMacEsq :

Yes.

Customer:

no creditors

Customer:

the official rep can order him to return $$$s

ScottyMacEsq :

What matters is whom the court appoints as representative, not what the will says (although this will influence whom the court appoints).

ScottyMacEsq :

Yes. That's correc.t

ScottyMacEsq :

*correct

Customer:

so as long as they are sworn in first... that is best solution, they can order him to return all funds

Customer:

including his 30%

ScottyMacEsq :

Yes, and if he doesn't, the court can, and if he still doesn't, then the court can hold him in contempt.

ScottyMacEsq :

Yes. Again, creditor claims and other claims have to be paid first.

ScottyMacEsq :

Even costs of administration (court costs, attorneys fees, etc...)

Customer:

ok.... thank you very much....

ScottyMacEsq :

THEN whatever is left is paid out.

Customer:

ok

ScottyMacEsq :

So he doesn't have a claim to 30% of what there is now, but only what's left.

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

Customer:

thank you.

ScottyMacEsq :

You're welcome, and again, good luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11331
Experience: Licensed Texas General Practice Attorney
ScottyMacEsq and 14 other Legal Specialists are ready to help you
Expert:  ScottyMacEsq replied 1 year ago.
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