Legally Speaking: Can a will’s executor take the money and run?

By Linda Toga

THE FACTS: My father died recently. He had a will in which he named my brother as executor. My brother and I have not spoken to each other in a number of years. I am concerned that he will close out my father’s accounts and sell his house and keep all the money even though I am named as a half beneficiary under the will. He seems to be under the impression that since he is the named executor, he can do these things simply by presenting the will.

QUESTION: Is that true?

THE ANSWER: Absolutely not! Although your brother is named in your father’s will as the executor of his estate, the surrogate’s court in the county in which your father resided at the time of his death must admit the will to probate and issue letters testamentary to your brother before he can take any action with respect to your father’s assets.

In other words, he must establish to the court’s satisfaction that the will is valid before he is able to act as executor. He cannot assume the responsibilities of executor without the court’s explicit approval. The complexity, cost and time involved in having a will admitted to probate will vary with the number of beneficiaries named in the will, as well as the number of heirs to the estate, the ease with which the attorney assisting the named executor can locate the beneficiaries and heirs, how cooperative those people may be with the attorney in moving forward, the value of the estate and whether anyone contests the admission of the will to probate, among other factors.

While the probate process can be straightforward and relatively inexpensive, there are numerous issues that can arise in the probate process that are best handled by an experienced estate attorney. Some of the most common issues with probate are not being able to locate individuals who are entitled to notice and dealing with individuals who contest the validity of the will. Fortunately, the percentage of cases where a will is contested and ultimately not admitted to probate is small. However, if there are objections filed to the probate of a will, the probate process can drag on for quite some time, significantly increasing the expenses of the estate.

If you and your brother are the only beneficiaries named in the will and your father’s only children, and you do not have a basis for contesting the will, the probate process should be relatively straightforward. Once the court issues letters testamentary to your brother, he can sell the house and close your father’s bank accounts. However, he cannot simply keep the money for himself since he has a legal obligation to carry out the wishes set forth in your father’s will.

In your case, he would be required to distribute to you assets valued at half of the value of the estate after accounting for your father’s legitimate debts, funeral and estate administration expenses, commissions and estate taxes. If you suspect that he has not done so, you should demand that he account for all of the estate assets so you can see the value of the marshaled assets and the expenses incurred by the estate. If you are not satisfied with the accounting he provides, or have reason to believe that he breached his fiduciary duty to you as a beneficiary, you can ask that his letters testamentary be revoked.

Since this process can get quite involved, if it comes to that, you should seek the advice of an attorney with expertise in the areas of estate administration and litigation.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate and estate administration, real estate, small business service and litigation from her East Setauket office.