Executor doesn’t pay heir and heir passes

My father was executor to his brother’s estate, his brother left his money to his partner. My father tried repeatedly calling the heir for months trying to distribute his money and even going to his home with no success, the heir was sick and moved in with his brother unknown to my father. Recently, the heir passed away and now the heir’s brother is pursuing legal action against my father for the money. Does my father have to pay him?

Asked on September 2, 2017 under Estate Planning, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If the brother left the money to his partner, it was by will: a "partner" does not inherit under intestate succession. If by will, then if the heir dies after the brother dies, the money should go to the heir's own estate: those designated by the heir's will to receive the money or, if there is no will, those who would inherit from him under intestate succession. That is because if the heir survives (lives longer than) the testator (person making the will; your father's brother), whether the heir physically received the money or not, he obtained the right to it; it therefore is part of his estate and goes to those who inherit from him. The heir's brother may inherit, if there are no others who would inherit ahead of him (e.g. children, parents--the exact order depends on whether there was a will and what it says and which state the heir lived in). So therefore the heir's money will go to someone and there is a good chance it will go to the brother: your father should ask the heir's brother to provide proof and a sworn affidavit that he is the one to inherit, and also execute an agreement that he will hold your father "harmless" if a higher-priority claimant (like say, a biological child) comes out of the woodwork--i.e. that if a higher priority claimant to the money appears, the heir's brother will pay any amounts and costs due.


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