Am I able to challenge a co-executor of Dad's will?

A fellow caregiver asked...

My dad died 5 1/2 years ago and we are still dealing with the estate. Basically a few years before my dad died he had a heart attack and the woman he lived with had him sign a will in the hospital. A year or so later they had a common law separation. A year later he died but had not changed his will. She was the executor but through the separation agreement she was removed but it dropped down to co-executors that she had picked - her daughter (who my dad hated) and my sister. In total four beneficiaries - the two of them plus myself and the other executors brother.

At the time we were trying to sell the house of which the other executor decided to move in and take over and throw out the tenant living there (who was paying rent to cover the mortage costs). Now six years later with everything finally wrapped up somewhat, (as she thwarted everything along the way and did not respond for months on end) she is trying to claim $3600 for living in the house and taking care of it.

We sent numerous letter saying we did not want her there, personally talked to her and asked her to leave but she refused. The mortgage came out of the estate she lived rent free with her boyfriend - basically like a squatter. She would not approve any real estate agent we wanted for almost a year and then whe she did the house was sold within a couple months.

She has not submitted any monies for cars, lawn equipment ect. she was given to sell. We have conceded on so many continuous issues to just move things along, even if my dad would be rolling in his grave. We have done most of the work on the estate and want this behind us but this is not an issue we want to bend on? What are our rights as co-executor and beneficiaries?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

How to best resolve your dilemma is a bit of a tough judgment call, since you'll have to weigh the possibility of winding up the estate at last against the growing irritation that you don't want to be taken advantage of anymore.

It sounds as if the co-executor was a bit of a bad actress all along"”staying in the house without rent or reason, hiding the ball on the finances. But be aware that many people, often for varied and complicated psychological reasons, have a difficult time with the finality of settling an estate. So that could be part of what the foot-dragging is about.

But it may be about time to call in the letter of the law, which dictates that executors must act to settle estates "within a reasonable time ”and the clock is ticking out on reasonableness. The law also requires that executors make a complete and accurate accounting of the estate assets and payments.

Encourage your sister, as co-executor, to complete all the details she is able to as far as property valuation and distribution. If there are some areas she is unable to complete in this final accounting because of the co-executor's lack of cooperation, she can just leave them blank"”and highlight them as requiring her response. Then, encourage her to make one last ditch effort to make a final settlement of the estate"”setting out succinctly what remains to be settled, emphasizing the desire to wind up the estate along with the law's dictate to do so"”and giving a brief but specific time by which she must respond: perhaps a week or two.

If there is no response or an unsatisfactory one, your sister can file a request with the court that the other co-executor be removed for mismanagement. Contact the local probate court for its particular procedures on this. With luck, you have also saved copies of the letters you wrote to the squatters in case they are needed to bolster your claims.

While most probate courts are loath to step in and supervise the wrap-up of an estate, taking this legal action sometimes jars a hesitant co-executor into rightful action.

Your situation also points up a lesson from which others can learn: Naming co-executors, who must agree on all estate actions, can often lead to complications"”most of them fraught with unpleasantness.