Q: my sister still has not probated the will. its been almost a year. shes also taken $ and not shown it out of dads acct.
My sister, exe of my parents will probated the will after I took her to court for NOT probating the will. She listed only 20K in the bank account and the house. I have bank records showing my parents had much more then 20K and she also was taking 5 k a month out of the accounts AFTER my dad was dead. She is letting an aunt live in the house which , in my parents will is to be sold and the proceeds split between us 5 children. My father was in a nursing home in CALI by my sister for 2 years before he passed. His care would have been covered 100 percent between his pension ss and medicare in cali. Shes told everyone SHE paid for his care.. I do NOT have the money to take her to court to force her to sell the house and show what money shes actually bilked from the bank accounts but I DO have all the bank acct numbers and copy of the will. I can NOT afford a lawyer. What can I do to make her accountable?
A:
Removing the Executor of a Probate Estate
By Kenneth A. Vercammen, Esq.
In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court. More info at http://www.njlaws.com/removing_the_executor_of_an_estate.html
COMPLAINT FOR ACCOUNTING
A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.
A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time.
As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $300-$450 per hour, with a retainer of $4000 needed. Attorneys will require the full retainer to be paid in full up front. We charge a consult fee of $200 to discuss the case.
The plaintiff can demand the following:
(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.
(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.
(3) Payment of plaintiff's attorney's fees and costs of suit for the within action.
(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.
(5) That the executor be removed as the executor/administrator of the estate and that someone else be named as administrator of the estate.
(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.
EXECUTOR'S COMMISSIONS
Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets.
However, if you have evidence that the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint can request that the commissions be reduced or eliminated.
SALE OF REAL ESTATE AND OTHER PROPERTY
Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to
1) remove the executor
2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent
3) compel the appraisal of the home and, thereafter, the sale of the property
4) make the executor reimburse the estate for the neglect or waste of assets.
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