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What if the executor does not file paperwork with probate court?

Marblehead, MA |

My sister died in 2011. She left a will, naming another relative as executor. She has not filed any paperwork regarding this estate in the local court system. She appears to be writing checks, selling assets etc. She refuses to discuss the matter. This seems sketchy to me and other concerned family members. I would guess the total (starting) value of the estate to be at least mid six figures. We are baffled.

Any suggestions on how we can get some transparency here?

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Attorney answers 6

Best Answer
Posted

I agree that you need to contact an attorney to help you get to the bottom of this. The limited facts that you provide, however, suggests that your sister may have engaged in some "home-made" estate planning. The fact that her "executor" has been able to access the assets at all suggests that she was either a joint owner on the accounts or she was designated as the beneficiary. Otherwise, she would not be able to gain any access to the assets at all. It does not matter what the Will says, if the assets were all jointly held or designated someone as beneficiary, since a Will only applies to assets titled in the decedent's name alone.

(Incidentally, she is not the executor unless an estate has been opened and she has been appointed as such, by the court). Otherwise, she is the "nominated executor," at best, and she would have no legal rights, in that position. Given that two years have passed, you should check the probate court records in the county where your sister resided at the time of death to determine if a probate estate has been opened. If one has not, I am very concerned that your sister's Will may never be given effect.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** 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. I hope you our answer helpful!

Brian C. Snell

Brian C. Snell

Posted

This is the response I was looking for. If your surviving sister is accessing the decedent's assets, there is a strong likelihood that the assets were jointly held. That would explain why a petition for appointment has not been presented. The question is, did your sister intend for your other sister to take possession of those assets following her death or could they have been titled jointly for convenience purposes. If the latter, then while the law may not require a probate, one is generally done. As has been said, you may want to discuss the matter with an attorney. If you may be a beneficiary, there might be some legal remedies that can be explored.

Asker

Posted

Thank you for the replies. I know that my late sister gave my other sister signing power on her checking account while she was sick to make sure household expenses would get paid, etc. But she told me that she had a local attorney draw up a will in which she left everything to her two kids. (She said that a trust was supposed to be set up for them etc.) The living sister will not show me the will. I contacted the court a month or so ago, and they have no record of anything being filed. I also checked the registry of deeds online and the house is still in my late sister's name. I am concerned about these assets that they are supposed to inherit. Thanks again!

Brian C. Snell

Brian C. Snell

Posted

Are the children old enough to inquire with them? If so, try that first, maybe an innocent inquiry will be enough. If they are not old enough, who is their guardian? Your late sister felt comfortable delegating this responsibility to your other sister. Unless you have a real reason to believe she is acting fraudulently, I would just keep a pulse on the situation. If a trust was executed before she died and she was able to move her assets into the trust, there was no need for a probate. I can appreciate your interest, I can't understand your sister's lack of transparency, I guess I would just suggest that you keep a watchful eye. Good luck.

Brian C. Snell

Brian C. Snell

Posted

I forgot to mention the house. If you are seeing that the house is still titled in your sister's name, then it was not transferred to the trust. If she was the sole owner of the house, the only way to transfer the house from her name is via probate. I guess this concerns me most of all. If a significant period of time has passed, there may be a need to encourage your sister to open up as to what is going on. Not that she is acting fraudulently, but there are time limits now surrounding probate.

Asker

Posted

Thanks Brian, The kids are 20 and 21 and off at school, thinking their Aunt is taking care of the hassles of this for them. Yes, the thing about the house is disturbing to me too. I also noticed when I checked that site that the only recent activity regarding that property seems to be a pretty hefty state tax lien notice. ugh..

Posted

You would do well to speak with an experienced probate attorney. Normally, an inventory and account should be available at this point. There are some situations where "informal" dealings can occur, but generally not with amounts north of $10K. At that point, you are going to have to file paperwork with the court. An attorney could help encourage your relative to do what is required of her, or arrange for a replacement executrix/administrator to be appointed.

Posted

Consult an attorney


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Posted

Hi

You need to hire an experinced probate attorney as soon as possible to take legal action against the executor and to remove her as soon as possible. It appears that you have reason to be concerned. I have 40 years of experience doing this if you care to contact me. Good luck.

Steve Coren

This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is based only on the facts presented. This answer is basd only on Massachusetts law.

Posted

You absolutely need to speak with an attorney.

You can compel your relative to produce and file the will in Court. It is possible that your relative is simply disregarding the will and self-dealing with estate property. You should reach out to counsel immediately if you have some interest in the estate.

Christopher Vaughn-Martel is a Massachusetts lawyer with the firm of Vaughn-Martel Law in Boston, Massachusetts. All answers are based on generalized Massachusetts law and the limited facts presented by the questioner. All answers are provided to the general public for educational purposes only and no attorney-client relationship is formed by providing an answer to a question. If you would like an attorney with Vaughn-Martel Law to review your specific situation and provide you with legal options or information specific to you, you may schedule a telephone or office by calling 617-357-4898 or visiting us at www.vaughnmartel.com. Our office charges $100.00 for a consultation, and applies your consultation fee to your first bill if the Firm is hired to perform further work.

Posted

It is possible that all property was joint. This a way people sometimes seek to avoid probate. Such an approach can be open to attack. It could be that your sister used a trust, and you are not a beneficiary. In that event you might have no effective recourse. Some clues may be available in the registry of deeds if you sister owned any real estate. Without knowing more, I would not comment on your likelihood of success. But it you do want to go to court, go and see an attorney experienced in probate litigation, and see what he or she thinks of your facts.

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