Have Legal Questions? Ask a Lawyer Now.
Thank you for using JustAnswer. I am researching your issue and will respond shortly.
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.
it seems like a lot of $s that have effectively been stolen from the other heirs
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.
That's not unusual.
what about fiduciary responsibility
Unfortunately in situations such as these, with property, money, etc... siblings will turn against each other.
There's a fiduciary responsibility to heirs IF the person is named executor.
(or if that person is a trustee of a trust)
the will specifically states property division
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.
he is the representative
for the estate
In that case (like I said above) "There's a fiduciary responsibility to heirs IF the person is named executor. "
So if there is a fiduciary relationship there, then there would be a positive case to go against him for that.
But that's assuming that he's already been named that by the probate court and sworn into that role.
Just by being named representative / executor in the will, does not automatically make him the executor. He would still have to be sworn in
but assuming that he was sworn in, he does have a fiduciary duty to the other heirs.
if the will states the division, and the $s are gone then what
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.
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.
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.
he sold house that went into the bank account, and that is the $$$s taken about 150K in total.
The reason is that these cases are pretty complex and require a higher degree of pleading and proof than what can typically be done on your own. Like I said before, in a breach of fiduciary responsibility case you can get attorneys fees paid as part of the damages.
they have a copy of the Will....
Wow. I am sorry to hear that. Again, there is absolutely a lawsuit here, no question. If the police are not going to get involved, unfortuantely there's no way to force them to.
all three were named 'representatives'
I would hope that as the representative he would have a copy of the will... He has to administer the will unless it is successfully challenged. Otherwise, the court can remove him, assess damages against him, etc...
But the court only swore him in as the representative?
no one sworn in.. but docs are filed and there is case no
I see. Like I said before, until the court swears him in, he's not officially the representative, and there can be an objection to him being sworn in based upon his actions up to this point. Again, I would highly suggest talking with an attorney that handles probate cases, because at this point it may be easier to undo any damages already done (than to wait until he is officially named representative and then try to remove him from that role).
if not representative, what happens with $$s he took
If he is not sworn in, .. what happens
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...
not take all though right?
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...
The representative can take everything at the beginning, and pay out to heirs as the case progresses or is finalized.
oh.. so what you are saying is if one of the others can get sworn in fast... now, then the 'official' rep
(depending on what creditor claims come up)
the official rep can order him to return $$$s
What matters is whom the court appoints as representative, not what the will says (although this will influence whom the court appoints).
Yes. That's correc.t
so as long as they are sworn in first... that is best solution, they can order him to return all funds
including his 30%
Yes, and if he doesn't, the court can, and if he still doesn't, then the court can hold him in contempt.
Yes. Again, creditor claims and other claims have to be paid first.
Even costs of administration (court costs, attorneys fees, etc...)
ok.... thank you very much....
THEN whatever is left is paid out.
So he doesn't have a claim to 30% of what there is now, but only what's left.
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!
You're welcome, and again, good luck to you!
Did you have any other questions before you rate this answer?
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).