Can an administrator of an estate tell theheirs that they cannot be on estate property?

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Can an administrator of an estate tell theheirs that they cannot be on estate property?

My husband’s father died a couple of years ago and left no Will. My mother-in-law filed to be administrator of the estate. My father-in-law had 8 children; 3 of the children were from a previous marriage. My mother-in-law is telling all the children that everything belongs to her and they have no right to it. Further, she says that she can tell them who can and cannot be on the property. All the children want to know if what she says is true? What rights do they have and what they can do about her trying to keep everything from them?

Asked on March 5, 2011 under Estate Planning, Georgia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

An administrator has a "fiduciary"duty" to the estate.  This is the duty implied when someone is put in a position of trust to benefit other, such as that between an administrator and heirs.  An administrator owes a duty to an estate pursuant to state intestacy laws.  Accordingly, it must at all times exercise good faith and put their interests second to the interests of the heirs and/or estate.  Based on the facts presented, there may well be either fraud, negligence, and/or other misconduct at play.  You should contact the probate court in question and/or consult directly with a probate attorney on all of this immediately.  You can challenge your step-mother's role as administrator and potentially have her removed for breach of fiduciary duty. 

Additionally, pursuant to GA's intestacy statutes, a surviving ex-spouse receives 1/3 of the estate and the remaining 2/3 is distributed among the deceased's children.

You should be aware however that some assets can be transferred outside of probate.  For example, if your father had a small estate, property may have been transferred by affidavit.  Also, some assets may have been held as "joint tenants with right of survivorship", in which case the other joint tenant would have received your father's share to property operation of law.  In addition, funds in an IRA, pension, 401(k), or other retirement plan bypass probate and go directly to named beneficiaries (unless the beneficiary named was his estate).  The same holds true for any life insurance proceeds.


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