Can I sue my brother as executor of our mother’s will?

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Can I sue my brother as executor of our mother’s will?

My brother is the oldest child was appointed by our mother as executor. All
four of us children were named in her will, but my mother was in an accident
which resulted in an insurance settlement after her death. The lawyer he hired
for court did serve each of us paperwork regarding the hearing to settle the
insurance claim my brother received that money. He then decided to give half
the settlement money to one sister kept the other half for himself. Can my
sister I sue for our fair share? The accident insurance settlement were
after she had made her will, so not addressed in it. I live in Michigan.

Asked on June 9, 2017 under Estate Planning, Michigan

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Even if the settlement was not directly addressed in the will, the will might have covered it: if the will said that all your mother's assets, or all her remaining assets after first specifically distributing certain named ones (e.g. jewelry to a daughter or granddaughter) were to be divided evenly among her children, then the settlement would fall under that provision. So it is likely (since wills typically have such a provision distributing the "rest and remainder" of any assets) that your brother has violated his fiduciary duty as executor (duty to follow the will's instructions; to be fair and loyal to all heirs and not put himself first) and so that you can sue him. Such a lawsuit would likely be chancery court (a part or division of county county), which typically has the rule of overseeing fiduciaries of various types, including executors.


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