When there is a Will but certain family members step in and start selling things before the estate goes into probate, what can be done?

My ex-husband passed away recently. Our 2 minor children lived with him at the time. His sisters stepped in took over their home took everything that wasn’t naied down and sold it in an estate sale, even personnel property of the children, they left the children with the contents of their own bedrooms. They were told they had no rights to anything because his sister was named as executor of the Will. Is this legal?

Asked on July 7, 2012 under Estate Planning, New York


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

No, it is not correct and you need to speak with an attorney on behalf if the children as soon as you can.  First, no one can act until they are actually appointed by the Surrogate's Court as the executor of the estate.  Next, from the sounds of things it is doubtful that he cut the kids out but instead probably left them everything (and under intestacy they would have gotten everything as well) so it sounds like the "executor" and sister dissipated the assets of the estate, which is a breach of fiduciary duty.  It may be a good idea to ask that some one else be appointed as executor to go after these two.  Good luck.

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