Unfortunate choice of executor

[David]

I just assumed all wills were filled with the county clerk after death.


My brother always complained that our father's last wife took everything by providing a forged will. I went to the courthouse and in a few minutes found the will which was an exact copy of what my brother thought was fake. Seemed pretty real to me. Our dad wanted her to get everything. Done, time to move on.

[GH85Carrera]

When my dad died, he had a will and left me as executor. I was smart enough to use an attorney to help me. We appeared before the judge and that and I swore to uphold the terms of the will. That was also the last time I ever wore a coat and tie.

I used that same attorney to write the will for myself and my wife. Something all of the folks on Pelican should do, get a will done NOW.

I asked him if the county got a copy and he said no. It is just a legal document that the executor presents to the court, after the death certificate for the deceased is signed. Without a will, the estate goes to probate.

Going before a judge with no attorney is a real gamble. Most judges take a very dim view of non attorneys going before them. My attorney was friends with the judge, and he said this will be easy. He was not real expensive, and after the estate was closed done and over the attorney appeared on my behalf to have the estate officially closed and my duties as executor terminated.

One of my buddies was sued for something he had nothing to do with. The lawsuit was obvious "boilerplate" from some internet site. In Oklahoma the attorneys and judges got the legislature, who are mostly attorneys, pass a law that form legal forms are null and void. My friend was representing himself and wanted to point out the judge that it was a form from the internet and he had the law printed that addresses it as evidence. He made the mistake of phrasing the comment to the judge as "Your Honor, if you could read....." the gavel came down. He told my buddy to approach the bench. The judge said you are seconds away from contempt of court, suggesting I can't read is not something I care for, and do not say another word or you will spend the night as my guest in the local jail.

The judge did say to the other side, that he can see the lawsuit is not valid, as it was a form from the web, so case dismissed. My friend said he did not say one word, and he left.

[SCadaddle]

"I used that same attorney to write the will for myself and my wife. Something all of the folks on Pelican should do, get a will done NOW.

I asked him if the county got a copy and he said no. It is just a legal document that the executor presents to the court, after the death certificate for the deceased is signed. Without a will, the estate goes to probate."



No, I disagree with this as well, as in recent years I was personally involved in 3 simultaneous estates and the Executor of one of them. In my personal experience:

You should sign and date your Will with a blue ink pen. For that matter you should sign and date each and every page of your will with that blue ink pen. That will distinguish it from the original vs. a copy that anyone else will run through a copier without selecting a color copy. But if witnesses to your signing your Will are required, don't sign it until they are in place with you in person AND a Notary Public that can attest (via their VALID seal and signature) to the witnesses affidavits that you actually signed your Will in their presence. They witness both you and each other. The original Will is handed over to the County Probate Court, typically "the court of equity" known as the Chancery Court. It becomes a document of the probate court case. It is required for the (named in the Will) "Executor" to be issued "Letters Testamentary" in order to actually become the Executor by the Court. This is also recorded with the Court in the case. It's the document the Executor is required for just about everything else from that point forward in resolving the estate.

I'd also argue that every estate contains some form of probate assets. And I'm certain every State has a way for creditors to attach those probate assets. A "Notice to Creditors" is typically published in the local news paper, perhaps at least 2 or 3 times over the course of 90 days since Letters Testamentary are issued. After the 90 days it's more difficult for a creditor to show up looking for money/assets. But that's not to say IF the Executor knows of a creditor and doesn't speak up he's off the hook.

So much more I could add to this conversation, and probably will. John Grisham could write a novel of what I went through.

[Tobra]

I always sign in a color other than black

It is not a ton of dough involved, $500,000 worth of house, jewelry and what not. He lied for months and said there was no will. The photo of a list he gave her appeared to be an attachment of the will. He gave away valuable items that were she was specified to get. Pretty sure that is criminal. It will be interesting to see what it really says.


Guy is not an attorney, just a POS. As far as bad blood, not possible. Only reason to interact with him would be to go to his mother's birthday party or something, which is not every happening again. It is not even about the money anyway, more about his shady behavior. I was able to suppress the urge to throw him through a window. That probably would not have helped much anyway, and given his demeanor, probably what he wanted.


I will make a few inquiries and see if I can stir up a bit of a shiitestorm for him to deal with.

[masraum]

Originally Posted by Tobra

I always sign in a color other than black

It is not a ton of dough involved, $500,000 worth of house, jewelry and what not. He lied for months and said there was no will. The photo of a list he gave her appeared to be an attachment of the will. He gave away valuable items that were she was specified to get. Pretty sure that is criminal. It will be interesting to see what it really says.


Guy is not an attorney, just a POS. As far as bad blood, not possible. Only reason to interact with him would be to go to his mother's birthday party or something, which is not every happening again. It is not even about the money anyway, more about his shady behavior. I was able to suppress the urge to throw him through a window. That probably would not have helped much anyway, and given his demeanor, probably what he wanted.


I will make a few inquiries and see if I can stir up a bit of a shiitestorm for him to deal with.

Yep, make his shadiness a real PITA for him. Good luck.

[matthewb0051]

My wife's distant cousin died 6 days before our wedding. Her father was named as executor for that estate. Almost immediately all of the beneficiaries started the petty BS. There was Exxon stock and some other things that were of a pretty large value.

Pretty sad how people all of a sudden care after a death but never seem to be around before, when the poor sod is bed ridden and the like.

Or when they start acting like fools after, see below:

When my father died my sister was on vacation, at someone else's expense, in Europe. The first thing she asked me when I call to tell her the news, "when are we selling his house". Not how or did he suffer or even should I come back to the US right mofo now. She completed her vacation and came back about a week later.

Then she had the nerve to accuse me of cheating her on the estate and even claimed that there was some 401(k) or annuity that I was hiding. Sure thing, I would do that and risk my law license. Needless to say, we don't speak at this point.

[A930Rocket]

My father passed away several years ago, but both he and my mother had iron clad wills, powers of attorney, etc. with my brother as executor. My brother, his wife and both my parents were there at the signing with the attorney. Everything went smoothly after my dad’s passing, with no problems.

My mother is now 93, living in independent living and in the early stages of dementia/Alzheimer’s. Getting her there, after living in their home for 45 years was a struggle.

Obviously, it was in her best interest to move out of a 4000 square-foot home, where she lived alone, into someplace that was safe and carefree. She had too many close calls, calling the fire department for minor water leaks, homeowner maintenance etc. etc. My brother takes care of all the investments and financial aspects, while my older sister pays the bills.

She has not forgiven us for moving her, remind me of it every time we talk, and says that my brother, my oldest sister and myself forced her out of her home against her will. She still complains about us taking away her drivers license, when she’s all but blind.


When we went around the table expressing our views, our little sister, just wanted our mom to be happy, even if that meant staying in the home by herself (with caregivers). Our mom finally agreed after several family meetings, that it was the best thing to do. The house was paid off and would provide her with financial security, in addition what she had in investments.

Now, our mom wants to change her will, excluding my brother, older sister and myself and make our little sister the executor. My little sister is an idiot and wouldn’t know her butt from a hole in the ground, as to what to do. The problem is, she coddles our mother and doesn’t look out for her best interest. I also wonder if there is some kind of financial stress playing out here.

As for my mothers mental health, she’s in the early stages of dementia/Alzheimer’s and her personality has really changed quickly over the last six months. I’ve never heard her cuss, but she has dropped F bombs and more on my two sisters, my brother and several other people recently. She gets very angry and accusatory with everyone and leaves nasty voicemails for us.

Long story short, although my father did everything right/possible to set up my mother financially after he passed, we are now in a position, where we are afraid our mother will either change the will based on her declining mental faculties or be taken advantage of by some manipulative caregiver/lawyer.

Edit: my brother has all of the power of attorney‘s for her affairs, including her health.

Edit 2: We have a family meeting via zoom (because of COVID exposure) tomorrow at four. It will be interesting to see what happens.

Edit 3: I was going to make this post short, emphasizing issues with people changing their wills and it just snowballed. My apologies.

[Tobra]

Her diminished mental capacity will likely disqualify any revisions to the will being valid.


It is very frustrating for people descending into dementia. Often, they are aware of things slipping away from them, but can do nothing about it. I can't imagine how horrible that would be. People tend to take their frustrations out on whoever is close, hence folks with dementia tend to beat up on their family a little.

[matthewb0051]

Originally Posted by A930Rocket

My mother is now 93, living in independent living and in the early stages of dementia/Alzheimer’s.

Now, our mom wants to change her will, excluding my brother, older sister and myself and make our little sister the executor. My little sister is an idiot and wouldn’t know her butt from a hole in the ground, as to what to do. The problem is, she coddles our mother and doesn’t look out for her best interest. I also wonder if there is some kind of financial stress playing out here.

As for my mothers mental health, she’s in the early stages of dementia/Alzheimer’s and her personality has really changed quickly over the last six months. I’ve never heard her cuss, but she has dropped F bombs and more on my two sisters, my brother and several other people recently. She gets very angry and accusatory with everyone and leaves nasty voicemails for us.

Sound to me like your mother lacks testamentary intent, that is the requisite mental capacity to make proper informed decisions about how to dispose of her estate on death. A good attorney will ensure that she has such and will not execute a new will for her, a bad attorney will not give it a second thought.

It is a ground to challenge a will after death.

Another ground is the undue influence of a beneficiary in enticing the deceased to make a will or formulate the contents of a new will to benefit the person in a greater fashion than they would be favored without the influence.

I'd make sure a copy of the old will is kept in the off chance there is a new will. Then the court will have a fall back if a successful challenge is made to a new will on those grounds. If there isn't a copy then it could end up as if your mother died intestate.

[A930Rocket]

Originally Posted by matthewb0051

Sound to me like your mother lacks testamentary intent, that is the requisite mental capacity to make proper informed decisions about how to dispose of her estate on death. A good attorney will ensure that she has such and will not execute a new will for her, a bad attorney will not give it a second thought.

It is a ground to challenge a will after death.

Another ground is the undue influence of a beneficiary in enticing the deceased to make a will or formulate the contents of a new will to benefit the person in a greater fashion than they would be favored without the influence.

I'd make sure a copy of the old will is kept in the off chance there is a new will. Then the court will have a fall back if a successful challenge is made to a new will on those grounds. If there isn't a copy then it could end up as if your mother died intestate.

My brother has a copy of the will in his safe deposit box, along with all the other required documents. My older sister took everything of value, including a copy of the will from my moms safe deposit box for safekeeping.

A red flag that popped up recently was, our mom called her investment advisor saying she wanted copies of her investments, etc. As my mom can’t read, because of eye problems, her caregiver would have to read it to her. Her investment advisor immediately called my brother to give him a heads up. Fortunately, my brother has legal obligations to oversee her finances and has a great working relationship with her financial advisor. He will not do anything before talking to my brother.

[flatbutt]

I did the whole song and dance for my kids. The house is in trust for them along with a cash trust for the grandkids. Everything is split 50/50 between my son and daughter. I have an advanced directive as well. Everything is filed with the county and state. It was expensive because I used a CELA to do it all.

[GH85Carrera]

Originally Posted by SCadaddle

"I used that same attorney to write the will for myself and my wife. Something all of the folks on Pelican should do, get a will done NOW.

I asked him if the county got a copy and he said no. It is just a legal document that the executor presents to the court, after the death certificate for the deceased is signed. Without a will, the estate goes to probate."



No, I disagree with this as well, as in recent years I was personally involved in 3 simultaneous estates and the Executor of one of them. In my personal experience:

You should sign and date your Will with a blue ink pen. For that matter you should sign and date each and every page of your will with that blue ink pen. That will distinguish it from the original vs. a copy that anyone else will run through a copier without selecting a color copy. But if witnesses to your signing your Will are required, don't sign it until they are in place with you in person AND a Notary Public that can attest (via their VALID seal and signature) to the witnesses affidavits that you actually signed your Will in their presence. They witness both you and each other. The original Will is handed over to the County Probate Court, typically "the court of equity" known as the Chancery Court. It becomes a document of the probate court case. It is required for the (named in the Will) "Executor" to be issued "Letters Testamentary" in order to actually become the Executor by the Court. This is also recorded with the Court in the case. It's the document the Executor is required for just about everything else from that point forward in resolving the estate.

I'd also argue that every estate contains some form of probate assets. And I'm certain every State has a way for creditors to attach those probate assets. A "Notice to Creditors" is typically published in the local news paper, perhaps at least 2 or 3 times over the course of 90 days since Letters Testamentary are issued. After the 90 days it's more difficult for a creditor to show up looking for money/assets. But that's not to say IF the Executor knows of a creditor and doesn't speak up he's off the hook.

So much more I could add to this conversation, and probably will. John Grisham could write a novel of what I went through.

Our attorney walked us down the hall to a neighboring much larger legal office with several legal secretaries in the front office. One of them is a Notary, and watched us sign in blue ink, then stamped it, and one of the other secretaries signed it as a witness. We signed three copies so there are three "originals". We put one in my safe, one was mailed to my brother and one was mailed to her brother.

[group911@aol.co]

I think stepping up the basis at your death can be an advantage unless your kids want to keep it forever. Lots of people consider it one of the greatest loopholes ever in the tax code.

Originally Posted by 3rd_gear_Ted

Since I own real property in California and my fear is Prop 13 will suddenly be changed, I created a family trust to hold all the properties. My Daughter the RN is my Advanced Health Care Directive (AHCD) person in charge and the trust executor. I can die tomorrow and everything is cool.

In Cali if the property is NOT in a trust, per Prop 13, it will get reassessed for property taxes based on current market value at the date of the death.

[masraum]

Originally Posted by matthewb0051

My wife's distant cousin died 6 days before our wedding. Her father was named as executor for that estate. Almost immediately all of the beneficiaries started the petty BS. There was Exxon stock and some other things that were of a pretty large value.

Pretty sad how people all of a sudden care after a death but never seem to be around before, when the poor sod is bed ridden and the like.

Or when they start acting like fools after, see below:

When my father died my sister was on vacation, at someone else's expense, in Europe. The first thing she asked me when I call to tell her the news, "when are we selling his house". Not how or did he suffer or even should I come back to the US right mofo now. She completed her vacation and came back about a week later.

Then she had the nerve to accuse me of cheating her on the estate and even claimed that there was some 401(k) or annuity that I was hiding. Sure thing, I would do that and risk my law license. Needless to say, we don't speak at this point.

Those sorts of stories are sadly very common. In some cases, you know ahead of time that the antagonists are dirt balls, but it seems like sometimes people completely change. It's something that I always wonder about, was the person just hiding it, or did the potential change them.

[fintstone]

Originally Posted by group911@aol.co

I think stepping up the basis at your death can be an advantage unless your kids want to keep it forever. Lots of people consider it one of the greatest loopholes ever in the tax code.

The reassessment for property taxes is unrelated.

[3rd_gear_Ted]

When my father passed, I executed the trust powers I had to sell Dad's stock substantial holdings. I also got a fair market appraisal to buy the family home held by the trust. That was August 2001. My brother who got his share of the stock didn't set up an account with a broker right away.
When 9-11 occurred the market tanked and he took a big loss. He wanted to sue me for the loss. I pointed out, that the trust says, the estate will pay my attorney fees in any dispute. I told him I will hire the most expensive lawyer I can find and see you in court. 20 years later he still grouses about it.
One more tale;
A friend's wife got a big payout from the family trust. He was a weasel who owed big time back income & state taxes. Upon deposit of the funds, The IRS came and took all of it, his wife never saw a penny of it.

[masraum]

Originally Posted by 3rd_gear_Ted

When my father passed, I executed the trust powers I had to sell Dad's stock substantial holdings. I also got a fair market appraisal to buy the family home held by the trust. That was August 2001. My brother who got his share of the stock didn't set up an account with a broker right away.
When 9-11 occurred the market tanked and he took a big loss. He wanted to sue me for the loss. I pointed out, that the trust says, the estate will pay my attorney fees in any dispute. I told him I will hire the most expensive lawyer I can find and see you in court. 20 years later he still grouses about it.
One more tale;
A friend's wife got a big payout from the family trust. He was a weasel who owed big time back income & state taxes. Upon deposit of the funds, The IRS came and took all of it, his wife never saw a penny of it.

I guess he sold when the market tanked? Because otherwise, he'd be up today. Selling when the market was down was his own mistake unless the companies that the stocks were in folded.

Ouch, yeah, moral of lesson #2, don't owe the tax man. He'll get his.

[Tobra]

Originally Posted by masraum

Those sorts of stories are sadly very common. In some cases, you know ahead of time that the antagonists are dirt balls, but it seems like sometimes people completely change. It's something that I always wonder about, was the person just hiding it, or did the potential change them.

Just hiding it

[KNS]

Originally Posted by 3rd_gear_Ted

In Cali if the property is NOT in a trust, per Prop 13, it will get reassessed for property taxes based on current market value at the date of the death.

That's brutal...

[matthewb0051]

Originally Posted by masraum

In some cases, you know ahead of time that the antagonists are dirt balls, but it seems like sometimes people completely change. It's something that I always wonder about, was the person just hiding it, or did the potential change them.

Originally Posted by Tobra

Just hiding it

I'd say mostly hiding it. Edit: But I'm certain money is the biggest motivator.

In my FIL's situation, that family had several members that had done well and others that hadn't. It was a money issue and the have nots just wanted a windfall.

As for my sister; it was a money thing as well. She divorced about 8 years prior and was used to a certain lifestyle that she couldn't afford on her salary, in fact she had 2 jobs and a part time wedding planning gig to make ends meet her expectations.

So when the old man died it was a means for her to play catch up. I was more concerned about the loss, the fact that he died alone, and how he had been so unlucky with women over the years that was part of the dying alone. Her? She didn't even go visit him prior to his death on her way to vacation in Europe, literally a 10 minute drive from her house to his.

The funny part was about a year later we each got a 1099 or whatever from Office of Personnel Management (he was retired from Dept Energy) for one day's retirement pay that had been paid directly to his heirs. The form stated Annuitant pay or similar. So we went another round of her claiming I had hidden an annuity. I had to explain that an annuitant was a person receiving a pension/retirement check.

I don't think any amount of discussion or appeasement would have prevented her idiotic behavior.