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My friend passed away a year and a half ago. In her will,

My friend passed away...

My friend passed away a year and a half ago. In her will, she left me specific bequests of a number of items. There was some family conflict (my friend's ex-husband and their daughter filed to contest the will in an attempt to capture the bulk of the estate (which was mostly physical property, not money). The Court appointed the daughter and my friend's sister (who was named in the will as Executor) as co-executors, and after a lot of court activity, the two of them actually spoke to each other and quickly came to an agreement. At that point, the house needed to be sold as it was heading into foreclosure; and the property was distributed according to the will, including the bequests. The remainder of the personal property was sold. The money raised by the sale/s is now gone.
Now, her sister's attorney is claiming that none of the estate should have been distributed (he did not advise he executor of that previously) and wants it all returned in order to cover the legal costs. I don't know the amounts, as I am only peripherally involved, as I did receive most of the bequests that were specified in the will (some I decided not to take, and those remained in the family's possession, and were sold). This is in Oregon. I am not quite sure what my responsibility is in this situation, and am looking for clarification. Especially given that the attorney did not advise the executors that they were not to distribute the estate according to the will prior to the time they believed they were able to do so, and acted accordingly. FYI: the property my friend owned (personal, not real estate) was extensive and storing it would have been an immense problem.

Lawyer's Assistant: Since estate law varies from place to place, can you tell me what state this is in?

Oregon

Lawyer's Assistant: What documents or supporting evidence do you have?

A copy of the handwritten will, with a list of the items bequeathed to me personally.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I can't think of anything.

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Answered in 6 minutes by:
3/12/2018
Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 42,510
Experience: 17 yrs estate law, real estate. Wills/Trusts/Probate
Verified

Hello and welcome! My name is ***** ***** I am a licensed attorney and will try my best to help with your situation. There may be a slight delay in my responses as I type out an answer or reply.

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The way this works is that specific bequests have the highest priority, then specific cash gifts, then the "residuary estate" for purposes of paying bills.

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So if assets were sold and liquidated and money given to the heirs before all bills were paid, they have to give it back to the estate before you would have to give your specific bequests back. So residuary gets returned first, then specific cash gifts, then specific gifts.

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So if there are debts to be paid that weren't, then the executors will have to claw back all the other distributions before they get to yours and use that money for bills..

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.

thanks

Barrister

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Customer reply replied 4 months ago
Thank you. My concern was whether I would have to return what I was intended to inherit. Which will be very disruptive for all of us!

Only if there wasn't enough money in all the lower priority gifts to cover the expenses... which would be very unusual to run up such a huge amount of legal fees that it literally eats up the entire estate..

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And you would only have to return something if there was a court order issued by the probate judge..

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Customer reply replied 4 months ago
The related question I have is whether the attorney is at fault because he did not advise his client of the need to retain possession of the estate's property until his bill was settled, or until the Court had made a final ruling. Without being so advised, the client assumed it was permissible for the estate to be liquidated/distributed according to the terms of the will, and that is what was done.

He isn't at fault...he is just a lousy attorney if he didn't tell his client, the executor "Don't give out all the money before all the debts are paid".. But it is the executor's duty to follow the law and know what they are doing or ask someone who does know..

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Without being so advised, the client assumed it was permissible for the estate to be liquidated/distributed according to the terms of the will, and that is what was done.

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You know what happens when someone "assumes" something.. The primary directive for an executor is pay off all bills and debts first before you do anything else...

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Customer reply replied 4 months ago
Well, he is a lousy attorney who is now suing, or threatening to sue his erstwhile client. And so far, the legal fees have swallowed up all the money from the estate, and more, as I understand it. This has all been dragging on since August 2016.

This is kind of a mutual failure... the attorney should have told executor not to give out all the money but the executor should have asked "Hey, should I give out all the money before everyone has been paid?". So this is a failure on both their parts. When an executor takes on that role, they are voluntarily assuming the duty to comply with the law and if they don't know what they are to do, seek out help from someone who does know what they are doing. And if an attorney is representing an executor and guiding them, they should have enough sense to lay down some ground rules about how things work.

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So if this got to court, a judge might even deny him all his fees if he did such a lousy job in advising the executor.

Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 42,510
Experience: 17 yrs estate law, real estate. Wills/Trusts/Probate
Verified
Barrister and 87 other Estate Law Specialists are ready to help you
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Customer reply replied 4 months ago
Thank you for your assistance - it has been helpful. And I'll have to hope the judge will do so!
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