What resource do I have as a beneficiary?

[Tom729]

Jurisdiction

New York

I am hoping that somebody here can advise me of what might be the most realistic course of action to take. I am considering taking a relative (my cousin to small claims court). I would like to know from people on here if they think that my claim has any merit. I live in New York btw.

My father passed away a year ago. He named my aunt (his sister) as executor when he wrote his will. He named his nephew (my aunt's son) as co-executor). He named his children as his beneficiaries. I am one of three children that were named as the beneficiaries in my father's will. The reason why my father did not appoint his wife was because he made out his will after a divorce from my mom. At the time shorty before my father's death we had differences with my aunt and her son because they each made demands that they wanted property and certain possessions that belonged to my father even though they were clearly not named as my father's beneficiaries. We said no to them and requested that I (the oldest son) be named as executor. They both voluntarily renounced their positions. My cousin however requested that he be given certain possessions as a contingency for signing the renunciation form. I have his letter from last year stating this. We gave him what he wanted just to appease him so that this could be resolved. Once that happened we hired a lawyer to probate my fathers will. It is now one year later and we recently received news from our lawyer that the original renunciation form that my aunt and my cousin signed last year was not correct.

My aunt and cousin were given the correct form. My aunt signed the form once again. My cousin did not. He is now refusing to sign (incorrectly) stating that there were some stipulations to his original agreement to signing the form that we did not meet. Since we have the original letter we can disprove this. We intend to fight this at a scheduled conference next month.

Because he is making these allegations and is not cooperating, it has caused us to spend additional money and time on having our attorney do things for us. I anticipate that it will cost us 1,000-2,000 dollars extra if not more.


My question is that when this is all said and done, and we establish to the courts that my cousin is not fit to be the acting executor as I am confident that we will, can we come after my cousin civilly for the additional resources that were spent over one year later?


Thanks any thought on the matter would be appreciated.

 

[adjusterjack]

Same answer as on the other site.

Not small claims court.

Talk to your probate attorney.

 

[Tom729]

Same answer as on the other site.

Not small claims court.

Talk to your probate attorney.

I appreciate that. I wasn't sure how active this site is/was so I posted my question in two different places.

My only other question is where would the monies to compensate us if a judge or arbitrator were to be sympathetic to our case come from since you are suggesting that it is not a small claims issue? If my cousin does not become executor than he is officially has no involvement in my father's estate but still did all this damage.

 

[adjusterjack]

The court might sanction your cousin by ordering him to pay your attorney fees if the court finds that your cousin's behavior had no merit. That's only a possibility, not a guarantee.

Unfortunately, in the American legal system (with few exceptions) all parties pay their own attorney fees.

Make sure you discuss this with your attorney as there will have to be a specific request made for an award of attorney fees and proper grounds presented.

 

[Tom729]

The court might sanction your cousin by ordering him to pay your attorney fees if the court finds that your cousin's behavior had no merit. That's only a possibility, not a guarantee.

Unfortunately, in the American legal system (with few exceptions) all parties pay their own attorney fees.

Make sure you discuss this with your attorney as there will have to be a specific request made for an award of attorney fees and proper grounds presented.

Thank you I really appreciate that.

 

[adjusterjack]

I see that Mr L on the other site gave you a hard time. That's typical of him. You handled it well.

 

[zddoodah]

He named my aunt (his sister) as executor when he wrote his will. He named his nephew (my aunt's son) as co-executor).

There is no difference between an executor and a co-executor. An executor is a person appointed by the court to administer a decedent's estate. If there are multiple executors, they are often referred to as co-executors. I'm therefore not really sure what you mean when you say that your father named your aunt as executor and your cousin as co-executor. By the way, did the surrogate's court actually appoint your aunt and cousin as co-executors? Or are they merely nominated in the will?

At the time shorty before my father's death we had differences with my aunt and her son because they each made demands that they wanted property and certain possessions that belonged to my father even though they were clearly not named as my father's beneficiaries. We said no to them and requested that I (the oldest son) be named as executor. They both voluntarily renounced their positions. My cousin however requested that he be given certain possessions as a contingency for signing the renunciation form. I have his letter from last year stating this. We gave him what he wanted just to appease him so that this could be resolved.

I'm a little confused about how much of this happened before your father died. As written, you made it sound like all of it happened before he died. However, it's worth pointing out that, before your father died, anything written in his will was legally meaningless, and there was nothing for them to "renounce." I'm also unclear why you had any involvement with giving away things that belonged to your father.

My question is that when this is all said and done, and we establish to the courts that my cousin is not fit to be the acting executor as I am confident that we will, can we come after my cousin civilly for the additional resources that were spent over one year later?

"Come after" him how? As my questions above should illustrate, it's somewhat unclear exactly what happened. That said, neither you nor the estate will have any right to recover expenses relating to the issue of whether or not your cousin should be executor of your father's estate.

 

[Tom729]

I will explain it again as best I can. They were nominated in the will by my father before he passed away obviously. My aunt was named as executor by my father (my understanding is the person that was nominated by the deceased to be co-executor does not actually have any involvement until the actual executor relinquishes her role.

*Within 1 to 2 days of my father's inevitable passing and continued for several days even after my father had died, my aunt and cousin were giving us a hard time about certain possessions they wanted for themselves. Before anyone had a chance to do anything, the executor and the co-executor wanted to go into my father's apartment and take possessions for themselves that they felt were theirs and that they were entitled to take. This first started happening within the 1-2 period before my father's death. Originally they wanted to be the first one's to enter the apartment and take for themselves what they wanted before the beneficiaries had a chance to do so. We the children (and beneficiaries) said absolutely not, and filed a complaint with the local town housing authority to get the apartment shut down. Long story short is that the person who was designated as executor (my aunt) stated to us that she would relinquish her position by filling out a renunciation form which she did. She also gave us the key to the apartment telling us that she did not have a problem with us taking what we wanted. We cleaned out my father's apartment. Took what we wanted to keep and discarded what we did not.

The problem as I had explained is that the renunciation forms that both parties signed a year ago were incorrect so now we were back to square one. My aunt once again signed the form. My cousin does not want to sign the form, and is now stating that "we entered the apartment illegally consequently preventing our aunt from fulfilling her obligations as executor."

This is not true for three reasons: 1) My aunt, and her son at the time both renounced their positions, 2) the key was given to me, 3) my aunt stated to me verbally and in writing that she did not want to be the executor.

The son (co-executor who is now ready to be sole acting executor) who also reluctantly relinquished his position as executor (after he made a request for certain property that once belonged to my dad) is now after a year later refusing to renounce his position a second time. You had asked me why I gave it to him if it belonged to my dad. The property that was given to my cousin was given to him after my dad had passed, which I believe would now make that property legally mine since I was named as the beneficiary, and the keys to the apartment were handed over to me by my father's sister, along with her admonition to take everything that we wanted.

So our attorney petitioned the surrogate court to see if we can have my cousin removed and that I become the sole acting executor. Myself and my two other siblings have a big problem with my cousin acting as the executor because he is unfit to perform the duties as executor as he has shown us.

It is worth mentioning the we paid for all my dad's funeral expenses, closed his accounts, paid for his gravestone, and paid all of his bills. The actual nominated executors did not a single thing thus far. My only concern is that I hope we are able to successfully petition the courts in having this individual removed.

I hope that clarifies some things

 

[army judge]

You should address your concerns to your attorney.

Your attorney is in the best position to advise you.

 

[zddoodah]

They were nominated in the will by my father before he passed away obviously. My aunt was named as executor by my father (my understanding is the person that was nominated by the deceased to be co-executor does not actually have any involvement until the actual executor relinquishes her role.

Your understanding is incorrect. It is customary for a will to nominate one or more persons as executor/administrator/personal representative (while these terms have slightly different meanings, they all describe a person who administers a decedent's estate and, to that extent, are interchangeable). The person(s) nominated as executor do not actually have authority as such until and unless they are appointed by the court. If the court appoints multiple persons as executor, those persons are commonly referred to as co-executors (or joint executors), and each co-executor is on equal footing as each other co-executor (unless the court's order appointing them contains some very unusual provision that says otherwise).

It is also customary for a will to say something like the following: If the person nominated to serve as executor is unable or unwilling to serve, then I nominate ____ to serve as executor. That person is typically referred to as an alternate, and this seems to be what you're talking about - i.e., that your father nominated your aunt as executor and your cousin as alternate.

Within 1 to 2 days of my father's inevitable passing and continued for several days even after my father had died, my aunt and cousin were giving us a hard time about certain possessions they wanted for themselves. Before anyone had a chance to do anything, the executor and the co-executor wanted to go into my father's apartment and take possessions for themselves that they felt were theirs and that they were entitled to take.

So...they gave you and someone else a hard time and "wanted" something. Nothing wrong with that.

Originally they wanted to be the first one's to enter the apartment and take for themselves what they wanted before the beneficiaries had a chance to do so.

The only person who should be taking possession of estate assets is the executor. In some cases, the nominated executor will need to take steps to secure assets before actually being appointed as executor.

We cleaned out my father's apartment. Took what we wanted to keep and discarded what we did not.

Despite apparently not having any legal authority to do so.

My cousin does not want to sign the form, and is now stating that "we entered the apartment illegally consequently preventing our aunt from fulfilling her obligations as executor."

He appears to be correct - at least as to the first part.

So our attorney petitioned the surrogate court to see if we can have my cousin removed and that I become the sole acting executor.

Ok...since you have an attorney, I have to wonder why you're seeking input from anonymous strangers on the internet.

It is worth mentioning the we paid for all my dad's funeral expenses, closed his accounts, paid for his gravestone, and paid all of his bills. The actual nominated executors did not a single thing thus far.

At it's most fundamental level, the executor's job is to marshal estate assets, identify and pay estate debt, and distribute anything that's left. Paying funeral and burial expenses are not part of the executor's job, although whoever pays those expenses has a priority claim against the estate.

 

[Tom729]

I spoke with people here about it because my lawyer will charge for phone consultations. I was hoping to get the information that I seek without constantly having to go to him. However because I was getting increasingly confused I did decide to eventually reach out to him. There is much that I did not properly understand that I do understand better now. As for entering the apartment, (he read the will with me over the phone) the beneficiaries did have a right to everything, and nobody else.

 

[army judge]

I spoke with people here about it because my lawyer will charge for phone consultations. I was hoping to get the information that I seek without constantly having to go to him. However because I was getting increasingly confused I did decide to eventually reach out to him. There is much that I did not properly understand that I do understand better now. As for entering the apartment, (he read the will with me over the phone) the beneficiaries did have a right to everything, and nobody else.

No one can provide you with better advice than your lawyer, not even another lawyer who is uninvolved in your case.

Your lawyer doesn't work for free, therefore he or she will charge you.

Bottom line, mate, the value you receive in legal matters is directly related to the quality of legal services provided.

Information from strangers isn't legal advice.

It is always best to seek proper legal advice, not information from strangers.

 

[Tom729]

Its understandable