Sibling, personal representative, not performing fiduciary duty

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Sibling, personal representative, not performing fiduciary duty

My mother passed away a year ago. She had a Will, which only 1 of my sisters has seen. That sister is the personal representative for the estate. She refuses to let the other sibling heirs see the Will. We all know that my mother’s house was to be sold and divided among the heirs. However, 2 of the siblings live in the house, 1 being the personal representative, and she has no intention of moving but will not discuss the house or any of my mother’s other assets with anyone in the family. The personal representative was also advised by someone to switch the home into her name after my mother’s death, which she also did. We don’t know how to proceed with getting the house sold and the assets divided among the heirs, since my sister is being uncooperative.

Asked on September 1, 2017 under Estate Planning, Colorado

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You can bring a legal action against the "estate" and the personal representative both seeking to hold the PR to her duties under the terms of the will and also under her "fiduciary duty" (the law-imposed duty of loyalty to the beneficiaries, as well as to use "reasonable care" in discharing the PR's resposibilities). As persons who likely or presumably would inherit (and who *would* inherit under "intestate succession" if there was no will), you have "standing" (or a legal right, based on having a sufficient interest in the outcome) to bring such a legal action. In such a legal action, your sister can be required to produce the will and also justify her actions. If a court finds that she is violating the terms of the will, or violating intestate succession if no will, or breaching her fiduciary duty through lack of loyalty or care, it can order her to do the things she should, to pay the estate some amount of compensation (to then be distributed to the beneficiaries), and/or remove her as PR. A probate attorney would be very helpful in bringing such a legal action.


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