What legal recourse does one have to investigate a current exector’s failure to adhere to his fiduciary responsibilities?

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What legal recourse does one have to investigate a current exector’s failure to adhere to his fiduciary responsibilities?

My father passed last year with a simple Will; my brother named executor. Per his attorney, since this was a “small estate” it was not necessary to file for probate. About 17 years ago my father transferred his property deed over to all 4adult children, while retaning life use. My brother/executor, has gone ahead and signed a contract with a realtor to sell the home. The house was previously listed with another agent, where all 4 siblings signed the contract. My brother/executor has indicated the Will authorizes him to sell house.

Asked on December 22, 2011 under Estate Planning, New York

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

The problem that you have written about is that since legal title to the home that your father lived in is not in the name of his heirs via a trust administration or a probate order transferring title, the property cannot be legally transferred over to a new buyer unless legal title has been transferred already. If it has, and you are on title, you need to sign the real estate listing as well besides all other siblings.

My understanding is that in every case where there is a Will (absent a trust) a probate is required. If there is no Will or trust, then an intestate petition must be filed in the probate court by an interested person of the decedent.

From what you have written, I see problems down the road concerning the real estate lisitnging that you apparently did not sign. I recommend that you consult with a real estate attorney about the situation.


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