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

Asked over 1 year ago - 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. Christine James

    Pro

    Contributor Level 19

    2

    Lawyers agree

    Answered . 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.

  2. Paul A. Smolinski

    Pro

    Contributor Level 17

    2

    Lawyers agree

    Answered . 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... more
  3. James P. Frederick

    Contributor Level 20

    Answered . 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. ******... more
  4. James P. Frederick

    Contributor Level 20

    Answered . 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. ******... more

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