Q: How to protect purselves from administrator make false statement to surrogate court?
Mother died without will. Her son was made administrator. Has now lied to surrogate court about reason for property not selling yet stating one of three beneficiaries who lives in the home and served as caretaker refuses to move. This is not the case and we are worried that this could mean trouble. Administrator has refused to put house up for sale due in part to needed repairs that he insists must be done on vacant house. Meanwhile we have been told by numerous people(lawyers, realtors,neighbors,etc.) that it isn't true. We have even offered to do repairs ourselves. Property hasn't sold because he refuses to cooperate instead of dictate. How can we protect ourselves
Removing the Administrator who fails to comply with responsibility
Under New Jersey Law, the person who agrees to accept the numerous legal responsibilities following the death of the person needs to liquidate assets, pay bills and taxes, file all necessary court and tax returns, then distribute the assets to beneficiaries. In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, occasionally the Administrator simply 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 to file a complaint in the Superior Court.
TO REMOVE THE ADMINISTRATOR, A FORMAL COMPLAINT FOR ACCOUNTING AND REMOVAL MUST BE FILED
A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current Administrator 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, plus to 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 $275-$350 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.
Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq. administrators and other fiduciaries are entitled to receive a commission on both principal of the estate, and income earned by assets. However, if you have evidence 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 sometimes later becomes clear that the resident has no desire on moving, and the executor has no intention to make them move or 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 sale of the property 4) make the executor reimburse the estate for the neglect or waste of assets.
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