When a mother dies and leaves her children the house, does the executive have the right to tell the children that nothing can be given away to family or friends. Everything is to be sold and the money divided
2 Answers from Attorneys
The executor has to follow the directions in the Will.
THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU.
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I agree with Attorney Jacobson but will expand a bit on her answer. As she correctly noted, the executor of the estate is bound to follow the directives in the will regarding the ultimate disposition of the property. However, an executor has to do an inventory of the property and substantial assets should not be taken by anyone until the inventory is done. Further, any distributions made the executor prior to filing the final account are at risk. What this means is that the executor can be held personally liable if it turns out there was an unexpected liability of the estate and all of the assets are disbursed and if the beneficiaries refuse to return the property. No executor would want to be in this position if these are valuable assets (like a car, jewelry, antiques etc. - not items which have little monetary value but sentimental value or personal property like clothing).
Further, your post does not indicate whether there are any claims against the estate. Claims could arise from possible lawsuits, or from Medicaid or a nursing home or there could be other debts, like credit cards or funeral/burial expenses or taxes. All claims must be paid before the beneficiaries get anything. So if there are claims, it might be necessary for the executor to sell assets to pay the claims.
With regard to real property, if the will left the house to the children, then it will go to the children unless there are debts and the other assets are not sufficient to pay the debts. However, the house has to be appraised for purposes of estate/inheritance taxes.
Is there an attorney for the estate? If there is an attorney, I would hope that things are being handled correctly. However, if there is no attorney, then a question may arise as to whether the executor is administering the estate properly. Either way, if you are a beneficiary, then you may need a probate attorney to represent you. Even if there is an estate attorney, the attorney is there to assist the executor in administering the estate. The attorney is not representing the beneficiaries and may or may not answer questions about the estate. I would get a copy of the estate file (it should contain the will, probate petition/application for grant of letters testamentary, order granting letters and appointing the executor and possibly an inventory depending on when the executor was appointed). Have a probate attorney who practices in the county/state where the estate is pending review the file. If the executor is not performing his/her duties correctly, the probate attorney may be able to petition to have the executor removed.
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