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Can I ask for damages in probate if the estate administrator received funds to pay the mortgage but didn't & lost the house?

Van Nuys, CA |

My brother is the administration over my mother's estate. He collected $75,000 in rents and never paid one mortgage on the house. Now the house foreclosed under his executor administration and he doesn't want to file the final petition. I have affidavits from the tenants signed under penalty of perjury for the court of how long and what they paid. My question is my brother has damaged my future interest in the estate so is there a penalty or damage I can ask for outside of the total he collected for the estate which now comes up to $92,000 total with other items? Is this possible to ask or get in probate court based on these circumstances?

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Attorney answers 5


While I think you can get SOME relief I don't anticipate it being a lot. It all depends on what notices you have received through the probate process and how many other heirs there are who have been damaged. I suggest you speak directly with an estate attorney and have them review the probate file to give you specific advise on your situation.


You need to consult a probate attorney. Beneficiaries have rights and are entitled to accountings and information about the administration of an estate. The Administrator has an obligation to preserve and protect estate assets. What rights you have and what damages you suffered would be dependent on all of the facts. That is why you need an attorney to review and advise you and represent you if there is any legal action to be taken.

The above answer is not to be considered legal advice and should not be relied upon as such. You should consult your attorney for specific legal advice as to your individual situation.


What needs to be done depends on what stage this estate administration is in. If the estate is being administered through a Trust, then the procedure is different then if the estate is being probated because of a Will or by Intestate Succession. In any event, you can demand an accounting and ask the court to replace him as administrator. You can also seek reimbursement if he has been negligent on his responsibilities. Please seek legal assistance on this.


Typically, as a beneficiary you have standing to request an accounting and to request a change of executor of the estate. Your facts are complicated and given that there are damages of $92,000 (and possibly more that you do not know about), you should hire an attorney to review the facts and to determine at what point in the proceedings the probate is at. Consult with an attorney now, not later. The longer you wait, the harder it is for the court to correct any bad acts.

The content of the above answer, and any subsequent modification thereto, constitutes general information only and does not constitute legal, accounting, tax, or other professional advice of any kind. The content of this answer should not be relied upon or used as a substitute for consultation with qualified, licensed professional advisors.


As my colleagues have advised, you should consult counsel. You certainly have the right to petition the court to require the administrator to account. It is unclear if the administrator acted in breach of duty. If the house was underwater, for example, and the collected funds are still in the estate perhaps he acted in the estate's best interests. If, on the other hand, he has simply absconded with the money, there are remedies available to you. Those remedies will depend on the exact facts and the present status of any probate proceedings.

-- Michael

Michael R. Daymude, Attorney at Law
Sherman Oaks Galleria – Comerica Bank Building
15303 Ventura Boulevard, Suite 900
Sherman Oaks, CA 91403-3199
(818) 971-9409

Litigation • Lawsuits & Disputes • Real Estate • Probate • Wills & Trusts • Bankruptcy • Personal Injury • Individual & Small Business Legal Matters

SINCE 1974. My answers are for general information only. They are not legal advice. Answers assume California law. I am licensed in California, only. Answers must not be relied upon.<br> <br> Legal advice and counsel must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice and counsel during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us.<br> <br> The communications on this website are not privileged or confidential. I assume no duty to anyone by my participation on Avvo because I have answered or commented on a question. Specifically, I assume no duty to respond to any question, comment, telephone call, or email because of my participation.<br> <br> All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice or counsel in answer to any question, if you are an interested party you should promptly and personally consult an attorney licensed in the appropriate jurisdiction for advice and counsel. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.<br> <br> Michael R. Daymude, Esq., Sherman Oaks Galleria – Comerica Bank Building, 15303 Ventura Boulevard, Suite 900, Sherman Oaks, CA 91401-6150. Telephone: 818.971.9409 • Website:

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