I'd like advice on an issue that involves me, but I am going to refrain from my role in it and try to be as objective as possible about the situation.
Five adult siblings recently had their father pass away. The last will & testament states that the executor is one of the siblings, who has handled his accounts for a decade, and to whom he specifically left verbal instructions for after his passing. His instructions included money that he asked to be transferred to an account under the executor's name years ago, but is to be distributed only to some of the children leaving a higher percentage of the money with the executor.
Two of the siblings are unsatisfied with his instructions to the executor and are demanding that all accounts be distributed equally to all the siblings. They are threatening to ex-communicate the executor if the executor follows the father's wishes.
Should the money be distributed evenly or should the father's instructions be followed?
1 Answer from Attorneys
The will must be followed. If it does not adequately explain father's intentions, the dispute must be brought before the probate court in (most probably) the decedent's county of residence to enable a judge to make decisions that not everyone will like. Unless such enormous power is vested in the executor/executrix by the will, it is unlikely he/she retains complete veto over decisions made by the siblings, as a group. If the father's will has not been lodged with the probate court, nobody can do anything with the accounts, anyway, if they remain in father's name, as no banker will release them to any one of his heirs without a court order (or some other, slightly streamlined possibilities available under Nevada law). If they are in "the executor's" name, he is now the legal owner and the kids all had better be nice to him, as they might have a hard time forcing him to hand over assets that are legally his, despite any "verbal instructions" from Dad. Of course, if he took them for himself, that would be a particularly nasty thing to do to all his siblings.
As an aside, may I suggest that none of you return to the attorney who drafted father's last will and testament if it actually said something remotely like, "I have given oral instructions to Johnnie on how all my accounts are to be distributed after death." That is not a legally enforceable will with any guidance or meaning a court could interpret as anything other than, "it all goes to Johnnie, and he decides if and where it goes from there." In other words, the specific wording in the will dictates who gets what, when and how. If, indeed, it left discretion in "Johnnie" to disburse the assets, he has the final say, but may only be able to do it (if the assets are at all substantial and in your father's name) with the guidance and supervision of the probate court in a formal probate proceeding.
The named executor should retain counsel to open a simple probate, admit the will and get him appointed to the formal position in which the father desired him to serve. If the estate exceeds a total of more than $25,000, there really is no choice. That is the statutory threshold at which Nevada law mandates probate in the absence of a living trust or other arrangements. But, then again, if the accounts were put in the future executor's name years ago, you all are at his mercy!