My mother's Will states that her estate be divided to her 5 children equally, but each one has been credited with an early in life pre-inheritance amount that she directs be subtracted from their 1/5 portion before disbursement. My brother, executor, wants to disburse the money at his discretion, according need and fairness. Can he do this? I disagree because I got a much smaller pre-inheritance amount than the others.
The executor is treading on very dangerous ground. You did not indicate whether the executor is involved in a formal probate proceeding. If a probate proceeding has been initiated, then the court will have no other choice but to follow the directives of the will, despite the Executor's desire to away veer from the your mother's directions.
If a probate proceeding has not been formally initiated, you may decide to do so to ensure you receive your intended inheritance. Moreover, I strongly suggest consulting an attorney, even for a free consultation, and make the executor aware of your attorney meeting.
Doing so should net you at least two (2) beneficial results:
1. The lawyer will likely tell you, the executor can not take such action without such authority supported by the provisions of the will itself. Doing so could mean significant repercussions for the Executor in the form of potential damages as well as establishing grounds for his/her removal as Executor.
2. Letting the Executor know of the meeting and the advice, will provide you with more leverage into "persuading" the executor to "do the right thing" and follow what your mother laid out in her will.
If your mother intended for you to get less, she would have provided for the smaller amount in her will. Obviously, she wanted you all to split it 5 ways subject to a reduction for pre-death inheritance, so let it be so.
Adam C. Aparicio
Elder Law Attorney
As a matter of Massachusetts law, what your brother is trying to do is a serious breach of fiduciary duty, for which he could potentially be removed from office and forced to compensate anyone who did not get their share from his own pocket if the parties who got more than their fair share refuse to give it back. The only way to get around this is for ALL of the parties to agree to "compromise" the will -- essentially, to rewrite the document themselves with the blessing of the court.
Please feel free to contact me at 781-433-8665 if you would like to discuss this matter further.
I agree with the prior attorney's excellent comments. The executor's behaviour is more than just dangerous, it breaches his fiduciary duty. His duty is to follow the terms of the will. He does not have the pwoer to do what he is doing. In fact, this behaviour is probably grounds for his removal as executor. You need to immediately retain an estates attorney to represent you and demand that he do what he is required to do and if not you will have him removed. This should stop all this nonsense.
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