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Can an executor go against his mother's will and distribute proceeds equally among his siblings

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Can an executor go against his mother's will and distribute proceeds equally among his siblings rather than taking for himself the majority as directed in the will

Attorney Answers 5

Posted

Yes, and under more than one scenario. If the will is found to be invalid, the laws of intestate succession would likely compel that result. Secondly, if all beneficiaries agree, the distribution can be whatever they want. A third possibility is for the executor to receive the share designated in the will and then make gifts to siblings as s/he chooses. Also, the executor is entitled to a fee for his/her services and can waive that fee.

Best wishes for a favorable outcome, and please remember to designate a best answer.

This answer is offered as a public service for general information only and may not be relied upon as legal advice.

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Posted

I disagree on some level with counsel. 1) Wills are generally upheld not found invalid. It happens when they are found invalid but people lose that effort alot more often than they win. Wills are meant to be legally followed and obeyed. that's why they are there. However option 2 is viable IF all the beneficiaries agree. If they do not, now your discussing spending multiple thousands from the estate on lawyers for a surrogate judge to make the call who in all likelihood is looking to take the easy route of enforcing the laws and enforce the will, and not declare it invalid. Invalidating a properly drawn will is not easily invalidated. Children are allowed to be specifically disinherited and it happens often. IF the beneficiaries do not agree to an equal distribution the most cost effective solution is a non-equal distribution at whatever level all will agree to.

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1 comment

Paula Brown Sinclair

Paula Brown Sinclair

Posted

Did someone say the will is invalid? Not I.

Posted

Yes. If your mother leaves 70% of her estate to you and 30% to your brother, you can distribute the estate 50% to you and 50% to your brother but for tax purposes you would be treated as receiving he full 70% to which you are entitled and giving 20% to your brother. However, if the will leaves 50% to you and your brother and nothing to your sister, you can't choose to give part of your brother's share to your sister although he can do that. In some cases, other tools may achieve desired results with more favorable tax treatment so I'd strongly recommend consulting trusts and estates counsel.

Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

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Posted

I agree with my colleagues, but I would suggest that there is another way to handle this. Rather than try to by-pass the Will through the courts, I do not see any reason why you cannot follow the Will, probate the estate and then once probate is done, have the sibling gift money to the other siblings, to the extent he wishes to even things up. That way, you do not need to deal with courts and judicial approval.

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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Posted

All my colleagues provided useful answers, but, as you can see, there are way too many factors to take into consideration for any one answer to fit your needs. One key question, for example, is the size of the estate. If it's too big, gifting may not be the way to go because that could trigger a crippling gift tax on the donor sibling. I strongly urge you to consult with an experienced estate attorney in your area to discuss options available to you. Good luck.

A response to a question posted on Avvo is not intended to create an attorney-client relationship. It is informational only. Allan E. Richardson, Esq. arichardson@employmentlaw-nj.com Richardson, Galella & Austermuhl 142 Emerson ST., Woodbury, NJ 08096 856-579-7045.

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