When is it too late to have an estate audited for mismanagement?

Asked over 1 year ago - Jacksonville, FL

The executor did not probate my mother's will. Her heirs were not allowed to see the signed will or the total value of the estate (valued at over $600,000 before her death excluding the real estate. Real estate deeds (properties in Virginia and Florida) were not transferred to the heirs and remains in the deceased's name. My mother died 7/15/2009, was a resident of Florida and died in Florida. My sister and brother in law were the executors.

Attorney answers (4)

  1. Christopher Quinn Wintter

    Contributor Level 12

    8

    Lawyers agree

    Answered . If the will was never admitted to probate, it's not too late to probate her estate. You need to hire a probate litigation attorney right away. What in the world are you waiting for?

    A person named as an executor has no obligation to probate a will or open an estate. Naming a person as an executor in a will is merely a job offer and the person has no obligation to accept. I suspect that your sister has a reason for not accepting her appointment...... Perhaps she already got more than her share.

    Under Florida law, a will is a public record. The person in possession of a will has a legal obligation to file the will with the clerk of court in the county of the decedent's residence within 10 days of notification of the decedent's death. Again, what are you waiting for? Why haven't you hired a probate lawyer? Why are you doing nothing? I really don't understand why people let others steal from them because they don't want to spend a few hundred dollars to consult with a specialist in these matters to learn about their legal problem.

    Do something!

  2. Shawn C Newman

    Contributor Level 14

    5

    Lawyers agree

    Answered . Sometimes, families end up fracturing over their parents estate. It sounds as if there has been a failure in communication between you and your siblings over what happened with your mother's estate. You really need to think about speaking with an attorney that can specifically address your mother's estate issues. The following thoughts I would offer as general information in preparation of such a meeting with an attorney.

    First, you need to verify with the county records IF there was a probate administration (it is possible that your mother’s real estate was held in trust as well the rest of her property). Either way, there will likely be a probate administration or a notice of trust filed in the county where your mother was domiciled. If not, you could be right and there may never have been a probate administration opened.

    Second, you need to look at the deeds of the real estate to see if they were held by your mother in some sort of arrangement that would have passed the legal title to the property automatically upon her death. For instance, your mother may held the property as “joint tenants with rights of survivorship”, a life estate (which would extinguish her interest automatically upon her death) or again, as trustee of her revocable trust.

    Third, you need to find out if the original Will is still exists. There is nothing that actually forces a family to go through the process of probate in a timely fashion, but most people do ultimately have to take care of transferring the property eventually. If the original Will was destroyed, your mother’s real estate would be passed through the laws of intestacy. If you are correct that there never was a probate administration, there is no reason why a probate administration could not be started NOW.

    Fourth, you probably need to talk to an attorney that can handle the estate administration for you, or make further inquiries regarding the need for estate litigation based upon a determination of the facts in your unique situation.

    Without more information, the best advice that I can recommend to you is to contact an attorney in your area and... more
  3. Robert William Haley

    Contributor Level 11

    5

    Lawyers agree

    Answered . If there was no probate, there can be no audit. The real estate passes to heirs automatically subject debts or a direction to sell in the will, so your share in the real estate should be fine. As to the remainder, it could very well be that the funds were in accounts that had beneficiaries or POD/TOD clauses (payable on death). Seek probate counsel.

  4. James P. Frederick

    Contributor Level 20

    4

    Lawyers agree

    Answered . I agree with my colleagues. I would simply point out that many of the things you believe were done improperly, were not, under your limited facts. There were no executors, because an estate was never opened. If there is no estate, there is no executor. At best, the person was "nominated" to be the executor. There is no duty to open probate. Also, there is no duty for anyone to share the contents of an estate plan, prior to the planner's death. At this point, you can probably petition to open probate on the basis that the nominated personal representatives have failed to do so. You need a lawyer to assist you with this, particularly since it sounds like this will likely be a contested matter.

    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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