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Can a co-executor of an estate also be a creditor to the estate? Seems like a conflict of interest

Sacramento, CA |

Estate has two executors (brothers) One of the brothers is claiming the estate owes him for care given the deceased over a period of years. No contract verbal or written was created to substantiate the arrangement for care. Further, the co-executor in question lived with the deceased free of charge, with full access to the deceased's assets. in addition, co executor in question will not transfer home into his name from the trust, and can/is using trust assets to legally pay property taxes etc. Co-trustee lives in house, rent-free, 16 months after date of death. There were eight beneficiaries; three of which ( the two executors and a sister) took their full dist. the remaining five(grand kids), got partial dist. The co-trustee wants the residual of the assets.

Attorney Answers 4


  1. I hate to tell you but the fact scenario that you set forth is rather complicated. So, to answer your question, it is possible for a creditor to be an executor of the estate. The court may have some different rules to apply to the creditor's claim to avoid a conflict but it is possible.

    You also talk about a trust and what the co-executor is doing with trust assets. I'm not sure if you mean there are both a trust and probate estate or you are just mixing up terms. In either event, the only way to get "good, well-reasoned" answers is to meet with an attorney to review the entire situation. Without that we are all just guessing!

    You can find good probate attorneys on this website or at naela.org.

    Good Luck!

    Legal Disclaimer: Paul A. Smolinski is licensed to practice law in the State of Illinois only, and as such, his answers to AVVO inquiries are based on his understanding of Illinois law only. His answers are for general information about perceived legal issues within this question only and no response to any posted inquiry should be deemed to extend any right of confidentiality between you and Mr. Smolinski, to constitute legal advice, or create an attorney/client or other contractual relationship. An attorney/client relationship is formed only by specific agreement including an evaluation of the specific legal problem and review of all the facts and documents at issue. We try to insure the accuracy of this information, but we cannot guarantee its accuracy. The reader should never assume that this information applies to his or her specific situation or constitutes legal advice. Therefore, please consult competent counsel that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.


  2. I agree with Mr. Solinski. Might I also add, to adequately protect your interests, I strongly encourage you hire an attorney. It sounds like you will need one eventually based upon everyone's self serving behavior. Better to get everything in line, get an accounting now and keep everyone honest as trying to fix any issues later will be much harder and likely much more expensive.


  3. I agree with my colleagues. This is complicated. I am not sure about a conflict of interest, but I think the executor in question has taken an erroneous position, (or trustee...your summary uses both terms, so it is hard to tell what you really are dealing with). This may be something where you need to seek direction from the court. If there is no written contract in cases like this, the caregiving is normally treated as being performed gratuitously.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  4. I agree with my colleagues. This is complicated. I am not sure about a conflict of interest, but I think the executor in question has taken an erroneous position, (or trustee...your summary uses both terms, so it is hard to tell what you really are dealing with). This may be something where you need to seek direction from the court. If there is no written contract in cases like this, the caregiving is normally treated as being performed gratuitously.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

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