QUESTION
Can he become executor of the property without any documentation?
Asked on Mar 05th, 2014 on Estate Planning - California
More details to this question:
My mother passed in August 2009. My daughter and I paid the mortgage up and until December 2013. My daughter moved and the house was left vacated. I live in Florida since 2010. My estranged brother is trying to become executor of the property to sell it for himself. I have a small claims affidavit and the death certificate and all of my mother's identification. The house has been empty since December. I was informed by him that it was vandalized and he is trying to blame my daughter for the vandalism and theft. When in fact she did not. Can he accuse my daughter of vandalism and theft? Before a week ago he has not been to the property since my mother passed.
9 ANSWERS
Edwin K. Niles
Executor is someone named in a will. If the court grants his petition, he becomes executor of the will. Is there a will? If there is no will, perhaps he is asking the court to be appointed as administrator of the estate. We don't understand the term, executor of the property. In any event, if he is asking the court to appointed, and you have grounds to do so, you can certainly file objections. This should be done before any court hearing. See a probate lawyer as soon as possible.
Answered on Mar 06th, 2014 at 9:53 PM
Corporate/Business Attorney serving Beachwood, OH
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Christine Sabio Socrates Attorney at Law
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If your mother died without a will, then the property would have to be probated in order to transfer and all of the children of your mother would need to be notified and listed as the next of kin. If your mother had a will and listed him as executor, he would still need to notify you of the proceedings. You can check the probate court in the county your mother died to see if an estate has been opened. Depending on the county, you may even be able to check this online. You can also seek representation since you live out of state to make sure your interests are protected.
Answered on Mar 06th, 2014 at 9:46 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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So, in the nearly five years since mother's death nothing was done to administer her estate? It doesn't seem to me that brother is out of line stepping in and trying to make something happen. Blaming your daughter for the vandalism is a little extreme, but did she keep the place insured? Did you? If you take custody of something, and accept the benefits of it, then you've accepted responsibility for it. Work with your brother to settle mother's estate.
Answered on Mar 06th, 2014 at 5:41 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Suggest you obtain the services of a probate attorney to represent the estate and have your or a financial fiduciary appointed the administrator of the estate.
Answered on Mar 06th, 2014 at 5:41 PM
Admiralty / Maritime Attorney serving Monrovia, CA
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The Law Office of Nathan Wagner
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Yes, he can ask the probate court to appoint him as executor, even if he does not have the paperwork you mentioned. As executor, he could sell the property, but he would not be able to keep the money for himself. He would have to distribute it to your mother's heirs or beneficiaries. Also, he can accuse your daughter of vandalism or theft, but the important question is whether anyone will believe his accusations.
Answered on Mar 06th, 2014 at 5:41 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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Anyone can accuse. Proof is different. The house will be passed to the heirs or legatees of your mother. If there is no Will the house, or the proceeds from the sale of the house, will be distributed according to the statute on descent and distribution. Fi no living spouse the assets are divided evenly amongst the decedents children. In order to properly sell the house a probate must be opened and a representative appointed by the court. The representative will be charged with selling the house and distributing the net proceeds to the heirs.
Answered on Mar 06th, 2014 at 5:40 PM
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If the value is over $150,000, you MUST probate the estate and if you do not, your brother will and then you are at his mercy. Even if it is under $150,000 a small estate affidavit is not the proper way to transfer the property - you need to still do a summary probate. Get an attorney before your brother does - probate fees are set by statute and paid out of the estate at the end of the probate so you have nothing to lose.
Answered on Mar 06th, 2014 at 5:40 PM
There is only one way that you can be an executor and that is by nomination of the decedent. Without such a nomination, then you must apply to the court to become the administrator of the estate. You can oppose that petition. You should consult a probate attorney to review all of the facts and advise you.
Answered on Mar 06th, 2014 at 5:39 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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Yes, your brother can do all of those things. Proof is another matter. There does not appear to be a reason why probate has not been done, however, and the fact that your daughter was living at the property suggests that she SHOULD have been paying the mortgage. Obviously, if the mortgage has not been paid in the past few months, there is a good chance that the bank will foreclose. Since your daughter has moved out, maybe that does not matter to her, at this point.
Answered on Mar 06th, 2014 at 5:39 PM