Executor Withholding and Misappropriating Funds

[LegalT]

Jurisdiction

California

Date of death of family member April 2020. Executor distributed 97% of assets to beneficiaries but is unwilling to give the remainder. Executor intends to use remaining funds for a memorial. More detail, the executor states that the memorial was previously agreed to by beneficiaries verbally. My understanding is that a deed of variation would be required in order to modify the terms of the will. The memorial is not authorized in the will's provisions and is against the wishes of 1-2 beneficiaries. Requesting advice on legal options.

 

[adjusterjack]

My understanding is that a deed of variation would be required in order to modify the terms of the will.

"My understanding" is often a phrase used when somebody has heard something from somewhere but really doesn't know what they are talking about.

A quick search for California provides nothing to indicate that your statement is valid.

However, wills can be reformed by the probate court after the death of the testator when there is extrinsic evidence that the testator's intent was contrary to the provisions of the will. One example is the following:

California Court Discusses Testator's Intent and Reformation of Wills — Bay Area Family Law Center Lawyer Blog — October 28, 2021 (walnutcreekdivorcelawyerblog.com)

Though I doubt that it applies to the memorial if the will is silent on whether the testator wanted the memorial.

The memorial is not authorized in the will's provisions and is against the wishes of 1-2 beneficiaries. Requesting advice on legal options.

Whoever doesn't want the memorial will have to go to court and obtain an injunction preventing its purchase and an order from the court compelling the disbursement of the remaining funds.

Frankly, that would be foolish, considering that the cost of litigation is likely to exceed the cost of the memorial.

 

[zddoodah]

Your post raises lots of questions.

Date of death of family member April 2020. Executor distributed 97% of assets to beneficiaries but is unwilling to give the remainder.

When and in what county was probate commenced? What was the date on which the court appointed the executor to serve in that capacity? Is the executor represented by an attorney?

Are you one of the beneficiaries? If not, what's your connection to the situation? How many beneficiaries? Is each of the beneficiaries to receive an identical amount? If not, what's the split?

What does 97% represent in terms of dollars (or, if you'd prefer, what does 3% represent)?

Did the executor post a bond? If so, what is the penal sum of the bond?

Have all estate debts and taxes been paid? If not, what remains?

the executor states that the memorial was previously agreed to by beneficiaries verbally.

Is this true?

My understanding is that a deed of variation would be required in order to modify the terms of the will.

I've never heard the term "deed of variation," and this doesn't sound like modifying the terms of the will.

The memorial is not authorized in the will's provisions and is against the wishes of 1-2 beneficiaries. Requesting advice on legal options.

The options are to do nothing or to file something with the probate court to require that the executor distribute the remainder of the estate assets.

 

[LegalT]

Thank you for the replies. Some clarifications:
1. Yes, I am one of the beneficiaries.
2. 3% equals about $12,000.
3. Regarding using estate funds to pay for a memorial. I am trying to determine if the executor has the authority to do this since the will is silent on the matter. There was no written agreement to hold a memorial, just a conversation in 2020 where beneficiaries said it would be okay to do so.
4. All estate taxes and debts are paid at this point.
5. Orange county, CA.
6. Executor given authority April 2020.

 

[Zigner]

There was no written agreement to hold a memorial, just a conversation in 2020 where beneficiaries said it would be okay to do so.

In other words, the beneficiaries AGREED to allow the funds to be used for a memorial.
It's really a small amount of money, particularly when divided amongst the beneficiaries.

 

[zddoodah]

Regarding using estate funds to pay for a memorial. I am trying to determine if the executor has the authority to do this since the will is silent on the matter. There was no written agreement to hold a memorial, just a conversation in 2020 where beneficiaries said it would be okay to do so.

So...that's pretty vague, but....

If you don't want this to be done, you (and whoever is of the same mind about this) should make your position known in a clear writing that is directed to the executor and the executor's attorney. The executor would be foolish to proceed contrary to the heirs' written disagreement.

Of course, if the executor proceeds anyway, the amount at issue may make it impractical to take action (unless there's a bond, in which case, making a claim against the bond will cost you nothing).