Legal Question in Wills and Trusts in Florida

How can heirs force an executor of a will to probate a will?

More than four years ago, my father passed away leaving a will which named his children and/or their children as heirs to all his possessions. He had no surviving spouse. The oldest brother was named the exeucutor. When my father became incapacitated in 1999 due to a stroke, to the best of my knowledge, my father's estated consisted of: more than $100,000 in cash, monthly social security checks, a new mobile home worth @ $50,000, and 1+ acre of land. When my father passed away, my brother asked my disabled sister to pick up a large tab on burial expense as ''no monies were available''. To date, he has done nothing to probate the will so that she can be repayed. He has made no effort to have a grave marker placed on my father's grave. He has allowed the mobile home to depreciate over the years and suffer damage in the rendering it probably worthless. As an heir, I want: accountability of what happened to my father's money; my disabled sister compensated as he promised her she would be for funeral expenses and her regular care of the mobile home during and after his illness; a grave marker paid for from my father's estate as he would have had it; sale of the land, the estate is settled in a manner he directed!

Asked on 10/16/04, 3:43 pm

2 Answers from Attorneys

Jonathon Moseley Jonathon A. Moseley

Re: How can heirs force an executor of a will to probate a will?

We lawyers need more information about where this is, what state's law applies, etc. You write that you are in Virginia, but the heading says Florida law. I don't know if you hit the wrong button and Florida law showed in that one little box, because I cannot tell from the details. Also, it is a conclusion of law as to whether Florida or Virginia law may apply so it would really help to know more details about where your father officially resided at his death. And if there is any doubt about where, details about his connections with various states.

However, under Virginia law you should immediately go into court and probate the will yourself as a beneficiary. The RESULT of the probate is for the court to appoint an executor. It is NOT the exclusive right of the executor to probate the will. If you are a beneficiary of the will, especially as a son or daughter, you can petition the court to appoint an executor, etc. If you don't have a copy of the will (although this would be a little unexpected by the court) you could include in your petition the fact that there is a will and so-and-so is holding it and refusing to take action upon the will. I've never done exactly this situation, but I am quite sure there would be a mechanism for the court to order the person holding the will to come forward and file it with the court upon a petition by a beneficiary of the will.

Being a son or daughter, you would be presumed to be a beneficiary, and the court would need to see a copy to find out for sure. So you would be in a strong position as a son or daughter. Even better, more than one son or daughter or other relatives combined.

In addition, under Virginia law, failing to file an inventory with the Commissioner of the Accounts under the Circuit Court is a serious matter and can even (as I recally) involve criminal liability. However, I don't recall who may be liable, since no one has been appointed executor. I suspect that even in Florida willfully hiding a will is probably illegal because the law is concerned about such things. I believe that if one interjects themselves by taking things away from the estate without filing inventories (rather than being passive on the sidelines) they will be in legal trouble for not filing inventories, regular reports, etc. with the Commissioner of the Accounts even if they are not the executor named in the will.

The issue of letting the mobile home run down and lose value is a legal concept called "waste" (believe it or not). A trustee or executor is legally responsible to preserve and maintain the value of the assets, within reason, and to let things fall apart is a serious matter. The difficulty here is that no one has yet been appointed as responsible.

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Answered on 10/17/04, 9:17 am

Re: How can heirs force an executor of a will to probate a will?

You can petition to be appointed personal representative yourself and ask the court to make your brother produce the will if you don't have it yourself. You need to consult a probate attorney in the area in which your father was domiciled at the time of his death and open an administration. The attorney will explain to you what can be done about the wasting assets etc. Good luck.

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Answered on 10/16/04, 9:25 pm

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