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What should you do if an executor of a will is withholding inheritances from the beneficiaries?

Atlantic Highlands, NJ |

My mother passed away 1 year ago. Before her passing, she expressed her wishes that I inherit her jewelry and some other items.

My father is the assigned executor of her estate. I have tried asking him if anything was left to me in my mother's will and if so, why he has yet to honor it. He refuses to answer my questions, let see the will, or tell me the lawyer's name who handled her legal affairs. Very strange behavior for someone who has nothing to hide.

I am prepared to take this to court, but am not even certain if anything was bequeathed to me in my mom's will. What legal recourse do I have to see the will or ensure that my father is acting appropriately to the position of an executor?

Attorney Answers 4

  1. The executor of an NJ estate has a legal obligation to give next of kin such as children a formal written Notice of Probate within 60 days of probate and to give a copy of the will on a next of kin's request. While no penalties are likely to arise for inadvertent failure to comply, an executor who deliberately refuses to give a next of kin a copy of the will may be sanctioned or removed as executor (especially if that next of kin is a will beneficiary). Of course, it also is possible that the executor wouldn't be sanctioned or removed.

    In any case, to protect your rights, you should consult an experienced trusts and estates lawyer. An oral wish that jewelry go to a particular job probably need not be honored in settling the estate where the will doesn't support that wish and there is no signed written verification, but it may be possible to enforce it in some circumstances.

    Finally, 1 year is not an unreasonably long time period to settle an estate especially if an estate or inheritance tax return may be required. On the other hand, your father's refusal to provide a copy of the will or other information re: the estate is cause for concern.

  2. The executor should have given you a copy of the Will. Since he didn't, you can file an action to get a copy and to remove him as executor.

  3. While I agree with the prior answers, it strikes me as possible, (and from the facts of your summary, LIKELY), that no probate estate has been opened. If that is the case, your father is not the executor, because if there is no estate, there IS no executor. He may have been nominated as executor in the Will. He would only have that position if he has been appointed by the court. If that has not happened, then you cannot do anything to remove him.

    It is likely that he should have filed the Will with the court, anyway, whether probate was needed or not. If there were no assets to pass through probate, then it is not uncommon to not file the Will, even if this should be done. If the Will HAS been filed with the court, you can check with the county to see if this has been done.

    If all of the assets were jointly held by your parents or listed your father as beneficiary, then probate would not be necessary and the terms of the Will would not apply. Your father should still honor your mother's wishes, if it is clear from her Will that she wants you to have her personal items. It is also possible that her Will leaves everything to him and leaves it to HIM to leave you these things in HIS Will.

    Many parents resent financial questions from children in situations like yours. So it may not be that he is hiding anything; just that he does not want to deal with giving away your mother's things.

    If you find that no probate estate has been opened, my suggestion would be to drop this matter, for now. Try to maintain as good a relationship with your father as possible. It is possible that he will give you your mother's things, when he is ready.

    James Frederick

    *** 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.

  4. Usually husband and wife make mutual devises to one another and if your parents have a standard will they leave all they own to one another then to the children or who ever. Don't be pushy, your father is grieving and having you clamor about the will, might induce him to change his will. Don't fight with your dad over possessions, he will lose respect for you and you will resent him.

    Good luck. You may have to wait to get yours, don't be fixated on possessions, it makes you look bad if you are making a stink about it. If your mother devised it to you, it may pass to upon your fathers passing, but maybe not before.

    Legal disclaimer: I am not your attorney and we have no attorney/client relationship. This response is submitted for informational purposes only. This is not legal advice, nor is it intended to be taken as such. Anyone considering the above referenced response and should always consult directly with an attorney within your jurisdiction before taking any action based on this, or any other information. This information is provided without any cost and therefore is worth what you paid for it. Again this information does not create any privileged attorney/client relationship and you are cautioned about information you convey to any person in a public forum considering your case, especially if it is criminal in nature. If you would like to consult with me you may contact me at (216)316-3161. I am admitted to practice in the State of Ohio and the State of Michigan.

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