My brother is executor of my fathers will. Do I have any control over what he decides are expences, and what he pays himself.

Asked about 5 years ago - Yorba Linda, CA

Can my brother pay himself money over and above what he is paid for being executor of the will. Can he also pay his family out of this money before it is split between him and myself? we are the the only to people mentioned in the trust. Upon my fathers death can I get a copy of the will from his lawyer.

Attorney answers (3)

  1. Rosemary Jane Meagher-Leonard

    Contributor Level 15

    Answered . My response is based upon the facts that you have stated in your question. After reading my response, if there are different facts involved, please re-post your question or send me an email. From your question, I am assuming that your father has passed away. Your brother, as the executor of your father's will, would first need to file a Probate in the California county where your father lived and passed away. In this petition, he will ask the court to appoint him as the executor for your father's estate. He would also request the court to issue Letters Testamentary that would permit him to act on behalf of the estate. Unless otherwise set forth in the Will itself, the fees for an executor are set by the Probate code. The code provides a formula based upon percentages of the value of the estate. The value of the estate, for the purpose of determining fees, is made before any distribution. However, in no case, can executor (or attorney) fees be paid out of the My response is based upon the facts that you have stated in your question. After reading my response, if there are different facts involved, please re-post your question or send me an email. For purposes of my response here, I am assuming that you are speaking about a Will that will require Probate. You also mention a trust, but your question does not appear to be about a trust. From the information in your question, it appears that your father is living. If this is incorrect, I am sorry for your loss. Your father's Will merely expresses his intentions for his estate, including whom he wants to act as his executor, Your brother, as the executor of your father's will, would then first need to have filed a Probate in the California county where your father lived and passed away. In this petition, your brother would ask the court to appoint him as the executor for your father's estate. He would also request the court to issue Letters Testamentary which would give him the authority to act on behalf of the estate. Depending on the terms of the Will, your brother, as executor, will have certain powers and duties to exercise on behalf of the estate. He may be granted the authority to act under the Independent Estates Act which means that the exercising of certain powers under the Will do not specifically require court approval. Unless otherwise set forth in the Will itself, the fees for an executor are set by the Probate code. The code provides a formula based upon percentages of the value of the estate. The value of the estate, for the purpose of determining fees, is made before any distribution. These requirements are also set forth within the Probate code. However, in no case, can executor (or attorney) fees be paid out of the estate without first obtaining court approval. This is done at the conclusion of probate when the final accounting is made, along with a request and order for distribution. Its not clear as to what he would be paying his family for. If he has hired a family member to do work on behalf of the estate, accounting work, for example, he would most likely need to obtain court approval first and approval of the beneficiaries, as well. If his family member are beneficiaries, they cannot receive their shares of the estate prior to any other beneficiary. If he fails to obtain the required court and/or beneficiaries' approvals or orders but distributes the estate or pays fees inappropriately, the court may decide to reduce his fees or his share of the estate. The court also has discretion to remove an executor who does not fulfill his fiduciary responsibilities to the estate and the beneficiaries. In certain case, extraordinary fees (above the statutory fees) maybe obtainable. However, these fees, as with the ordinary fees, can never be paid without a court order. If your father is now living, you can obtain a copy of your father's Will only with your father's permission. If your father has passed away, most attorneys will send a beneficiary a copy of the Wi

  2. Rosemary Jane Meagher-Leonard

    Contributor Level 15

    Answered . Due to an editing error, please disregard my previous response to your question. My answer to your question is now:
    My response is based upon the facts that you have stated in your question. For purposes of my response here, I am assuming that you are speaking about a Will that will require Probate. From the information provided, it appears that your father is still living and that your questions refer to his future estate. If that is not correct, I am sorry for your loss. You also mention a trust, but your question does not appear to involve a trust. Your father's Will merely expresses his intentions for his estate, including whom he wants to act as his executor. Upon your father's death, your brother, as the executor of your father's Will, would then first need to have filed a Probate in the California county where your father lived and passed away. In this petition, your brother would ask the court to appoint him as the executor for your father's estate. He would also request the court to issue Letters Testamentary which would give him the authority to act on behalf of the estate. Depending on the terms of the Will, your brother, as executor, will have certain powers and duties to exercise on behalf of the estate. He may be granted the authority to act under the Independent Administration of Estates Act which means that the exercising of certain powers under the Will do not specifically require court approval. Unless otherwise set forth in the Will itself, the fees for an executor are set by the Probate code. The code provides a formula based upon percentages of the value of the estate. The value of the estate, for the purpose of determining fees, is made before any distribution. These requirements are also set forth within the Probate code. However, in no case, can executor (or attorney) fees be paid out of the estate without first obtaining court approval. This is done at the conclusion of probate when the final accounting is made, along with a request and order for distribution. Its not clear as to what he would be paying his family for. If he has hired a family member to do work on behalf of the estate, accounting work, for example, he would most likely need to obtain court approval first and approval of the beneficiaries, as well. If his family member are beneficiaries, they cannot receive their shares of the estate prior to any other beneficiary. If he fails to obtain the required court and/or beneficiaries' approvals or orders but distributes the estate or pays fees inappropriately, the court may decide to reduce his fees or his share of the estate. The court also has discretion to remove an executor who does not fulfill or breaches his fiduciary responsibilities to the estate and the beneficiaries. In unusual circumstances, an executor may be entitled to extraordinary fees (above the statutory fees) where his duties went above and beyond the normal Probate. However, these fees, as with the ordinary fees, can never be paid without a court order. You, as a beneficiary, do not have control over which expenses of the estate can be paid. However, all estate expenses must be accounted for and only true and just debts, including fees, can be paid from the assets of the estate. Again, the court must approve the accounting of the estate. If your father is now living, you can obtain a copy of your father's Will from his attorney only with your father's permission. If your father has passed away, most attorneys will send a beneficiary a copy of the Will. If your father's entire estate is actually subject to a trust, please re-post your question and I will answer it based upon trust law.

  3. Phillip Clarence Lemmons

    Contributor Level 10

    Answered . Your brother's compensation as "executor of the will" is set by the probate code. He can get extraordinary fees, but they must be approved by the court. If you disagree with his request for extraordinary fees, then file an objection to his report.

    He generally doesn't have the authority to simply give estate money to his family members. His actions must be approved by the probate court. If you disagree, then object to his report.

    Upon your father's death, you are entitled to a copy of his will and trust.

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