My step-sister and I are joint executers of our father’s estate. She wrote a $16000 check on the estate to buy a car. My lawyer is telling us this is not illiegle. If so what’s to stop her from writing a check for the entire balance.
An Executor may be permitted to take partial fees, but this would have to be an extremely high-value estate for there to be over $32,000 in fees (since you and she would split the fees as co-Executors). Did you also receive $16,000? It's also possible to make partial distributions to beneficiaries, but an Executor can't preference herself--it has to be equal to all. It sounds like it's time to get a new lawyer and see about filing for her removal so that she doesn't take all of the estate's money.
If you and she are equal inheritors, and if you are co-executors, she cannot do this without (a) your agreement and (b) making an equal distribution to you. It seems that you are allowing her to control the checkbook. To protect your rights, you need to consult with your own expert probate attorney so you can lay out the entire story, he or she can look at what has been filed in court, and give you advice on what to do next. I would not delay a single day in doing this.
Mr. Huddleston is an Ohio-Certified Specialist in Estate Planning, Trust & Probate Law, with offices in Columbus and Dayton, serving client families and private business owners throughout Ohio. Mr. Huddleston responds to Avvo questions as a public service to help educate and provide general guidance to questioners, but his responses are not legal advice and do not create an attorney-client relationship.
Although this is not done in every case, this sounds like a case where your probate lawyer should be managing the estate checkbook. Perhaps you and your sister should meet with the lawyer for the purpose of setting out some ground rules, as well as delivering the checkbook to the lawyer.
Ms. Willi is a tax attorney, CPA, and Ohio-Certified Specialist in Estate Planning, Trust & Probate Law, with offices in Westerville, Ohio. She serves client families and private business owners throughout Ohio. Ms. Willi responds to Avvo questions as a public service to help educate and provide general guidance to questioners, but her responses are not legal advice and do not create an attorney-client relationship. Her posts are provided for informational purposes only and are not a substitute for advice provided by an attorney or licensed tax professional. Her phone number is 614-890-0500 and her website is www.willilaw.com.
Your sister should not be taking funds from the estate for personal use, unless they are distributed to her as part of your inheritance of an executors fee. Normally, she should not take either the executor's fee or a distribution until closing the estate. However, if there are sufficient assets, you may want to use this as an opportunity to take control of the estate accounts, and then treat it as a no foul, no harm type breach. If there are insufficient funds in the estate and this results in another heir of the estate receiving a smaller share, then this is a breach which needs to be cured by reimbursing the estate. You would have a duty to make sure she reimburses the estate in this case.
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