Will-Is it filed somewhere?

[JohnH]

I am named executor in a will for a non-relative friend who wants to leave two daughters off her will, give 25% to her son, and 75% to charity. I have a copy of the will along with the attorney who drew it up. I told her that if her daughters get into her house and gain control of her assets before her son, there really is nothing I can do. I’m not going to call the police to enforce the will. Neither am I going to spend a dime going to court contesting whatever the daughters try to do with her estate. Thus, in my opinion, the will is worthless unless her son gains control of her assets before her daughters, and that son cooperates with me in executing the will. Without his consent and support, I as the executor am not going to fight her daughters if they choose to ignore the will.

It may be a different story if I were an attorney and had my fees pre-paid along with money set aside to go to court and fight a contested estate.

Do you have any potential exposure if you accept the role of executor and then don't take steps to protect the assets for the benefit of the rightful heirs?Odd how people will try to involve others to settle their family squabbles. Seems like a better course of action would be to leave a nominal amount to each daughter, 25% to the sons, and make the son executor. Then have a provision that if any heir contests the will or interferes with the executor in any manner, they forfeit their share. Even if the amount each daughter gets is relatively small, the prospect of losing it may keep them off balance long enough for the son to do his job (or hire you to do it). Amazing how greed will take over in a situation like this, but she needs to use it to the executor's advantage.

[RitaB]

Lol

And the District of Columbia.

OK, that's funny. Spewed iced tea all over my keyboard, but that's funny.

[Burke]

I am named executor in a will for a non-relative friend who wants to leave two daughters off her will, give 25% to her son, and 75% to charity. I have a copy of the will along with the attorney who drew it up. I told her that if her daughters get into her house and gain control of her assets before her son, there really is nothing I can do. I’m not going to call the police to enforce the will. Neither am I going to spend a dime going to court contesting whatever the daughters try to do with her estate. .

Given the above circumstances, you may wish to rethink accepting the executor's position. As executor, it is your legal duty to marshall and control all the assets for the heirs and exercise the wishes of the deceased as described in the will if you are appointed by the probate court. (As long as those wishes are not against the law.) If you do not act with due diligence, you could be sued yourself by the heir(s) actually named in the will. If you feel the daughters would enter the house and take possession of assets, you could have the locks changed on the house. If they were to remove assets, it would be your responsibility to go after them. You may decline to accept the appointment as executor at death of the testator, and someone else could qualify. You do not have to give any reason. If you do accept it, you will be paid according to the schedule laid out by the state and/or probate court, unless it specifically says in the will you are to serve without payment. (In which case you could also decline to accept the appt.) And you will have control of all the money and assets, of which you would use same to defend the rights of the heirs in court if necessary, including the hiring of an attorney with the estate monies. The powers of the executor are extensive. Your friend has done you no favor by naming you in such a situation. I would have a very long talk with the friend. If you decide to accept the appt, I would also post a bond at probate in the amt sufficient to cover the assets and protect yourself, and pay the premium out of the estate funds, even if the will waives the requirement of such bond.

[ChEAr$]

Do you have any potential exposure if you accept the role of executor and then don't take steps to protect the assets for the benefit of the rightful heirs?

balance snipped.....

.

Actually a person is not an executor until appointed by a/the court. Thus he may know of certain facts, but is powerless to do anything until the decedent's demise.
(decedents demise???? grin)

anyway, you get my point.

[ChEAr$]

OK, that's funny. Spewed iced tea all over my keyboard, but that's funny.

There's no mistaking where you're from, girl.

Oh, it WAS sweet tea now, wasn't it?

[RitaB]

You know it

There's no mistaking where you're from, girl.

Oh, it WAS sweet tea now, wasn't it?

Durn tootin, it was sweet. Is there any other kind?

[Bees Knees]

Given the above circumstances, you may wish to rethink accepting the executor's position. As executor, it is your legal duty to marshall and control all the assets for the heirs and exercise the wishes of the deceased as described in the will if you are appointed by the probate court. (As long as those wishes are not against the law.) If you do not act with due diligence, you could be sued yourself by the heir(s) actually named in the will.

Actually, no...an executor is only an executor once a court has appointed you as one. Until then, you have no authority or responsibility...even if named in the will.

Just because someone names you as executor in their will does not automatically give you the responsibility of being an executor. The fiduciary responsibility does not start until the court appoints you as one and you accept the position.

In my case, if the son does not cooperate and give me funds to do the job, I'm not accepting the position.

[Burke]

I agree. I never said, or meant to imply, that an executor had ANY responsibilities in regard to the estate until such time as they applied and accepted the role of executor by the probate court. And that would not happen until the testator's death. Sorry if I gave that impression. All of the activities I mentioned would only be implemented after that document of appointment was in hand. Actually, the son has no say-so in how the estate is administered, unless the executor does something to affect his interest as put forth in the will. He does NOT provide any funds. The executor, once appointed, has control of all of the estate's funds and can use them as he/she best determines to fulfill the terms of the will. The son cannot say whether or not you get paid an executor's fee, for instance. That is determined by the will, and by the law in the absence of any direction in the will. You may take his wishes into account on some things, say on the distribution of certain personal property, but you are restricted by what the testator put in the will as to how funds are to be directed, distributed, etc. An executor could not allow unnamed persons in the will to take assets. Once the son has what is rightfully his, he could give away whatever he wished. But he would have no say in the amount the other named beneficiary(ies) received or did with their funds. And in the circumstances you described, with charities getting 75% of the estate, you may have to sell the real estate to implement that request, for example, whether he wished it or not. Now, if he is named co-executor, that is a horse of another color. But I did not make that assumption from your post. From the information you described, it just looked to me like it could be a can of worms you indicated you might not want to get into. I have done enough estates to know that even the simplest ones can get complicated, and usually do for one reason or another. The very fact that the assets are to be distributed in percentage amounts to the charity(ies) is enough to send me into palpitations. Percentage of gross? Or percentage of net, after all expenses are taken into account? I hope that is specified. I had to do one where it was not. No sense asking for trouble if you are not willing to see it through, that's all. I actually hope things go well, and wish you good luck with it.

[Bees Knees]

The rules are one thing. Reality is another thing. If the son and daughters have something else in mind when the time comes, there is nothing the executor can do to stop them. Who am I going to call? The estate police? I understand that once I am appointed by the court, I have legal control over the assets. But getting control of those assets means someone has to let me into the house. I’m not going to get into a legal fight with the son and daughters on my own time and my own funds. If they don’t cooperate, I’m not taking the job.

I think the original post was asking a question on how to enforce the terms of the will. Unless there is someone willing to enforce the terms of the will, it isn’t going to happen. The courts are not going to act simply because a will says so. There has to be someone willing to take up the legal fight.

BTW, I did make that clear to my friend. She knows the son has to cooperate with me if I am to act as executor.

[Lion]

Sweet Tea

Sweet Tea: the table wine of the South!

[Burke]

The rules are one thing. Reality is another thing. If the son and daughters have something else in mind when the time comes, there is nothing the executor can do to stop them. Who am I going to call? The estate police? I understand that once I am appointed by the court, I have legal control over the assets. But getting control of those assets means someone has to let me into the house. I’m not going to get into a legal fight with the son and daughters on my own time and my own funds. If they don’t cooperate, I’m not taking the job.

You would not get into a legal fight with the son and/or the daughters unless one or all of them contest the will. And the court would decide that. But you would not know that was going to happen in all likelihood until after you were appointed executor. There is NO way you would have to use your own funds under any circumstances.

The courts are not going to act simply because a will says so.

Of course they will. It is their job to see that the terms of the will are enforced. The probate court decides those things and can issue warrants if necessary. But I can see where you have a concern. There is usually a time lag when some persons may have access to the personal assets (not monetary) prior to the executor being appointed. If the testator feels that might be a problem, she should take action to make sure no one else has keys to the house. ( Hopefully, no one else's name is on the checking, savings, CD, investment accounts, etc.) If things don't go right, you only have to petition the court for action. Oh, what a tangled web we weave sometimes trying to control what happens after we are gone.