What can I do if my brother did not abide by my mother’s Will?

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What can I do if my brother did not abide by my mother’s Will?

My mother passed away about 2 1/2 months ago. My brother was the executor of the estate and my daughter was second executor. My brother has since not filed her Will and has walked away with over $25,000. So what can my daughter and I, who are both beneficiaries in my mother’s Will do? We have not seen or heard anything from my brother, as far as any assets and any expensives that he has paid out and just found out that he cleared out a bank account with a considerable amount of money. What do we do now?

Asked on March 17, 2017 under Estate Planning, California

Answers:

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

Answered 4 years ago | Contributor

From what you write, there may well be a breach of "fiduciary duty" by your brother. This is a duty that is implied when someone is put in a position of trust to benefit other, such as that between an executor and beneficiary. Therefore, a fiduciary must at all times exercise good faith in the peformance of their duties; they must put the interests of the estate above their own. Further, an executor must follow the law and the terms of the Will as they pertain to the administration and distribution of the estate and its assets. If a fiduciary fails to faithfully perform their duties, that will give rise to a claim. There may well be either fraud, negligence, or other misconduct at play here. Accordingly, you should contact the probate court and/or consult directly with a probate attorney as to your situation. You may be able to get the executor removed for breach of their duty. If so, someone else will need to be appointed executor. They can then challenge any transactions/transfers that may have been made that were not in the best interests of the estate (and if there were, hopefully get the money refunded). They will also need to request an accounting of the estate. If your brother was bonded (insured), the executor may also be able to go after insurance money to recoup losses, if any. Again, a probate lawyer can best adise you further.


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