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Dear Quentin,
My mother-in-law passed away almost two years ago, and her house has remained empty since then. Immediately after she passed, one sister-in-law came over, and took the entire contents of the house, against the instructions laid out in the will.
She did not allow my other sister-in-law or niece to take anything. The will specified that the contents were to be split three ways between the children; my husband did not want anything.
My second sister-in-law was bequeathed a vehicle in the will, which the executor — a non-family member — has yet to turn over to her. The executor said it will be returned when the estate is settled. I have also asked for access to the home to prep it for sale, but he refused.
Do we, given that we are family, have a legal right to access the home? And if there is no outstanding loan on the car, can it be released? We just want this to be settled.
Tired and Frustrated Sister-In-Law
Dear Tired and Frustrated,
When a beloved family member dies, it should not be an opportunity to reenact the antics from “Supermarket Sweep” where every family member grabs a trolley and fills it with their favorite pieces of furniture, jewelry, family mementoes and tchotchkes. The executor needs to step up to the plate, and do their job. If an executor fails to meet their fiduciary obligations or indulges in misconduct of any kind, they can (and should) be replaced.
The executor has a lot of power in overseeing a person’s estate. “Assuming the house was owned in your mother-in-law’s individual name, the executor is the only one who has the legal authority to access the home and its contents,” said Azriel J. Baer, a trusts and estate attorney with Farrell Fritz. “If the house was owned jointly with rights of survivorship, the surviving joint tenant would have the right to the property.”
Your sister-in-law is way out of line, and then some. “The executor should ask your sister-in-law for an inventory of all assets removed and make sure that everything is returned to the executor,” Baer said. “It is often the case that the executor is granted the ultimate authority to determine who receives a particular tangible, though many wills specify that the executor give due consideration to specific requests of the beneficiaries.”
Allison Busch, partner at Hartmann Doherty, Rosa, Berman & Bulbulia, said, “The executor is in charge of the estate and, therefore, has the authority to make decisions about the assets of the estate, including who has access to the house to ready it for sale. That being said, the executor has the obligation to act in a timely manner and to ensure that the provisions of the will are implemented.”
“If the executor actually allowed one daughter to take it all, or turned the other way, then there could be an action against the executor for breaching his fiduciary duty,” she said. “If an executor has been appointed, then probate is complete. The administration of the estate is not ,but probate is.” Busch added, “An executor may also feel that he doesn’t want to make any distributions until he can make all distributions.”
“‘The executor needs to step up to the plate, and do their job.’”
The executor may be overwhelmed. It’s a big job, and not one that should be taken lightly. Executors often have to deal with a mountain of paperwork, need to pay bills arising from the state and any debts that have been incurred, and must also file documents with state and federal government agencies. Given that there is also the threat of legal action from the heirs if they find cause, it’s a job for the responsible, and the trustworthy, and not the fainthearted.
“Regarding the sale of the house, the executor is not required to permit you access to the home to prepare it for sale, as it is the executor’s responsibility to sell,” Baer said. “As for the car, the executor should make the distribution to your sister-in-law. In New York, specific bequests generally must be paid within seven months of when the executor is appointed. If the executor is continuing to pay for auto insurance, he or she is wasting the estate’s assets.”
“It is important to note that executors have an affirmative duty of care to preserve estate assets, and can be personally liable for permitting assets to waste,” he added.. “Clients often do not appreciate how much power is given to the executor and need to carefully consider who they select for the position. While being trustworthy is very important, you also need someone who is organized, has financial acumen, and who will realize when to seek the advice of experts.”
Put pressure on your executor to administer the estate in an appropriate manner. The death of a parent can eliminate the one stabilizing factor in a sea of resentful siblings. Unfortunately, somebody who takes a car, and ransacks a house for its contents is not usually the kind of person who will suddenly have an epiphany, and realize the error of their ways. If your sister-in-law took a mirror from the house, this would be a good time for her to use it.
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