Executors not following a will

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Latest post 10-19-2010 9:47 PM by Drew. 15 replies.
  • 09-27-2010 9:31 PM

    Executors not following a will

    I'm in Georgia. My 3 step-children lost their father a few months ago. He left several million to the children in a testamentary trust. The lawyer that drafted his will and 3 codicils had a reading of the will explaining the trust and how it would be established. The father's wife of 14 years, is one of the executors along with a CPA, and a fried of their fathers. 

    The wife is now antagonistic to the will and says he wanted to leave her everything. The CPA after telling the children (all adults) the would receive this trust is now saying he doesn't  think the will is "fair"  to the wife and is not moving forward with the will. The CPA will not provide an accounting to the children or their lawyer.

    What would be the best legal action against the wife and the CPA.

  • 09-27-2010 9:58 PM In reply to

    • Drew
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    Re: Executors not following a will

    Well thats just too darn bad--the maker of the will is entitled to do as he or she pleases --subject to some statutory elections a spouse may make for some share of the pot---Dad could have left it all to teh NRA--thats his right....and GA is verymuch an odd state in that one can pretty much cut out the spouse but for 1 years expenses or something like that.

    The executor is simply out to lunch todo something other than what the will directs him or her  to do. If he doesn't like the job he/she  is free to quit , stand aside for somebody todo it right (Thats not always smart if some drone does it at $300/hr) !

    Surely your attorney should be able to figure out how to nail executor (s)  feet to fire in GA?  Wonder just how the executors plan to milk it?



  • 09-27-2010 10:49 PM In reply to

    Re: Executors not following a will

    dashing tom:

    What would be the best legal action against the wife and the CPA.

    That's easy.

    Tell your stepchildren (all adults) to hire their own attorney to bring the appropriate action in the probate court to remove the executor and appoint someone to oversee the probate in accordance with the will.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 09-28-2010 7:38 AM In reply to

    Re: Executors not following a will

    Thanks for the response. I'm an ex Army Ranger and from your picture we think a lot alike.They have attorney. I don't think he's aggressive enough. Very smart and friend of family. He is trying to get that, but he said it is very difficult to remove named executors.  

  • 09-28-2010 7:53 AM In reply to

    • Drew
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    Re: Executors not following a will

    Correct--it is hard to toss named executors unless they royally mess up.

    But if the will says do XX and the executors refuse to move forward  or propose to do YY you are now into mess up turf. But it still may be easier to compel doing  XX than to get them removed.

    There is another point--If executors are instructed to do XX and they openly advocate doing YY that benefits one of thier own personal pockets that sure sounds like a conlict of interest to me--may be useful to give them enough rope to hang themsleves with written or recorded comments .

    Sometimes timing and tactics  is part of a battle plan and with timing , tactics and a small force  and a small amount of $$$ one can do what it woud take a major force and lots of  (your kids) $$$ to do by direct frontal assault.

    Your lawyer may be doing a good job!  Making a show of force and a lot of noise may not be cost effective if you are paying him or her $250/hr.

     



  • 09-28-2010 9:53 AM In reply to

    Re: Executors not following a will

    You need to define what the CPA means by "not moving forward with the will."  Quite honestly, what he thinks is fair is hogwash legally. Perhaps a sternly worded letter from the kid's attorney to the CPA reminding him that his opinion counts for nothing and that the will/trust is the legally binding document would stop this nonsense before it goes any further. For all you know, the widow and the CPA could be in cahoots professionally and personally, if you get my drift.

  • 09-28-2010 10:42 AM In reply to

    Re: Executors not following a will

    dashing tom:
    They have attorney. I don't think he's aggressive enough. Very smart and friend of family

    Does that mean he's not a probate attorney?

    If he isn't, I suggest they ditch him and get a probate attorney who knows the ropes.

    With millions at stake a non-aggressive friend of the family is the kiss of death.

    dashing tom:
    he said it is very difficult to remove named executors.  

    That's true.

    But what has he DONE?

    Has he filed any petitions with the probate court to bring the situation to the attention of the judge?

    Or is he just gawkin' and talkin'?

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 09-28-2010 10:02 PM In reply to

    • Drew
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    Re: Executors not following a will

    Georgia  if thats the proper state, is the one state that all but allows decedant to freeze out the spouse and it he did so in favor of the kids--so be it. Time for the executors to get on with getting it done! I aspuse had wanted toinclude her he would have done so--unless he comes back fromgrave--if he left her out thats  the deal!

    Approximately:

    Spousal Rights in Georgia

    Currently Georgia is the state that gives a surviving spouse the least amount of rights when it comes to taking a portion of the deceased spouse's estate. Under Georgia law a disinherited spouse is only entitled to receive a monetary allowance from the deceased spouse's estate during the year following the deceased spouse's death, similar to the award of temporary alimony received during a divorce. After that the surviving spouse can't ask for additional support or anything else from the deceased spouse's estate.



  • 09-29-2010 2:05 PM In reply to

    Re: Executors not following a will

    Drew

    Thank you for the time you've spent with your responses. I wish you were in GA. I've had an update the decedent's attorney did a third codosil in July raising the testamentary trust to 3.5 million or the estate tax exemption, which ever is less.

    The wife hired a horses ass real-estate attorney. They want to argue that the decedent thought that since there is no estate tax she would receive "an undisturbed QTIP trust" (everything after the testamentary trust, gifts to charity, and settlement went to her in a QTIP for her lifetime, limited to interest, and no more that 2.5%per year of principal.) They argue that the 3.5 million should go to QTIP not to his children. What a pain in the a__ . There are questions about the death of the decedent. He was being treated for throat cancer, and died of suffocation in the shower. My step daughter's husband is a doctor and we heard the 911 recording, he wanted to sue her for wrongful death. I spoke to lawyer about pulling out all stops ( you know a final protective fire) to encourage her to do the XX stated in will. He's a top dollar attorney, but I thought we could use less expensive lawyer to break thru  their perimeter? What do you think. Do they have a problem with the trusts?

    I assume you are ex-military, or at least a true constitutionalist. Either way I appreciate your time

    Tom

  • 09-29-2010 2:25 PM In reply to

    • Drew
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    Re: Executors not following a will

    Nope, non ex military--just a royal stickler for some stuff.

    The worlds brightest real estate lawyer might not know a darn thing about GA estate law!

    Well, you are likley correct--in a year with no estate tax might mean the entire estate goes into trust for the kids. But thats exactly what the decedant appears to have written and thats the only logical outcome under GA law.

    And it sort of doens't make a difference--If dad put $1 million in trust or $20 into trust --if he left out spouse the law in GA spells out what her cut is--and its the same either way  --now the math specifics are up for debate and beyond me--but I think estate need suffer only a bite equal to 1 year of her past living style expenses.

    One season GA estate practice attorney should be able to cut thru her bull very quickly --but he or she may charge dearly for having the right marksmanship--now do you want to pay one skilled sniper or rely upon somebody who got thru basic and a few hours on a range and would be lucky to hit barn from inside of same even though he is an absolutely great cryptographer and translator.  

    Now if you have a great marksman and he or she is just waiting for the right shot and not a premature shot--that's great--but your post suggest you are not very sure this is the right person for this job. Your call, your money.



  • 09-29-2010 2:34 PM In reply to

    • Drew
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    Re: Executors not following a will

    Sorry but I think I missed one detail in you new post--you say Dad left her a QTip. Thats fine. Now she wants more.

    I don't think thats the way it works -in addition to problem of executor taking role against will she is obligated to carry out (and cuts herself a fee for so doing--a likey health fee)

    I don't think spouse can have it both way inGA--she cannot have a QTip PLUS the statutory 1 year support--its sort of one or the other. But you dig.

    And I also think if spouse takes a position against the will she needs to step aside from her executor rolecannot serve two adversay position at same time.

    which cuts her off from the executors fee and cuts her off from sending what are essentially personal legal bills to the estate to pay

     



  • 09-29-2010 2:38 PM In reply to

    • Drew
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    Re: Executors not following a will

    Follow the secondary money trail as well ---there are also likely to be nice executor fees and trustee fees for the chosen ones--especially for the large numbers you suggest. Everyone wants on this gravy train! And if I can use estate and trust as my personal expesne pot--how nice....

     

    53-6-60 Compensation of personal representative Official Code of Georgia

     


    53-6-60 Compensation of personal representative.

    (a) Personal representatives shall be compensated as specified in either the will or any written agreement entered into prior to the decedent's death or a written agreement signed by all the beneficiaries of a testate estate or all the heirs of an intestate estate. A written agreement between a testator and a personal representative shall be valid and binding upon the estate of the testator as fully and completely as if set forth in and made a part of the will.

    (b) If the personal representative's compensation is not specified in the will or any separate written agreement, the personal representative for services rendered shall be entitled to compensation equal to:

    (1) Two and one-half percent commission on all sums of money received by the personal representative on account of the estate, except on money loaned by and repaid to the personal representative, and 2 1/2 percent commission on all sums paid out by the personal representative, either for debts, legacies, or distributive shares;

    (2) Ten percent commission on the amount of interest made if, during the course of administration, the personal representative shall receive interest on money loaned by the personal representative in that capacity and shall include the same on the return to the probate court so as to become chargeable therewith as a part of the corpus of the estate;

    (3) Reasonable compensation, as determined in the discretion of the probate court and after such notice, if any, as the court shall direct, for the delivery over of property in kind, not exceeding 3 percent of the appraised value and, in cases where there has been no appraisal, not over 3 percent of the fair value as found by the judge, irrespective of whether delivery over in kind is made pursuant to proceedings for that purpose in the probate court and irrespective of whether the property, except money, is tangible or intangible, personal or real; and

    (4) In the discretion of the probate court, compensation for working land for the benefit of the parties in interest in no case exceeding 10 percent of the annual income of the property so managed.

    (c) Whenever any portion of the dividends, interest, or rents payable to a personal representative is required by law of the United States or other governmental unit to be withheld by the person paying the same for income tax purposes, the amount so withheld shall be deemed to have been collected by the personal representative.

    (d) Unless the will or written agreement specifies otherwise, where some or all of the estate passes through the hands of several personal representatives by reason of the death, removal, or resignation of the first qualified personal representative, or otherwise, the estate shall not be subject to diminution by charges of commission of each successive personal representative holding and receiving in the same right but rather commissions for receiving the estate shall be paid to the first personal representative who receives the property for the benefit of the estate or that person's representative, and commissions for paying out shall be paid to the personal representative who actually distributes the fund, and no commissions shall be paid for handing over the fund to a successor personal representative. If there is more than one personal representative serving simultaneously, the division of the compensation allowed them shall be according to the services rendered by each.

    (e) Unless the will or written agreement specifies otherwise, a personal representative is entitled to receive commissions on debts, legacies, and distributive shares paid to that personal representative in the same manner as commissions to which the personal representative would be entitled under the terms of the will or written agreement or applicable law on such items paid to others; provided, however, a personal representative shall not be entitled to any commissions for any sums paid to any personal representative of the estate as commissions or other compensation.

    (f) Personal representatives who fail to make annual returns as required by law shall forfeit all commissions for transactions during the year within which no return is made unless the probate court, upon cause shown, shall by special order entered on the minutes relieve them from the forfeiture.

    (g) A personal representative may renounce the right to all or any part of the compensation to which the personal representative is entitled under this Code section.



  • 09-29-2010 3:18 PM In reply to

    Re: Executors not following a will

    Well, the wife is not in any way "disinherited" which leads me to conclude she gets her QTip and nothing else. The rest goes to the kids. What she and her horses ass attorney think the decedent thought is baloney. There is a will. It is spelled out. Looks like she wants everything--and executor fees to boot. I say don't bring a BB Gun to the OK Corrall when you need an elephant gun. 

  • 09-29-2010 3:54 PM In reply to

    • Drew
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    Re: Executors not following a will

    Nope--She is entitled to QTip if will says so --but if she doesn't like that I think she is stuck with ONE years support  ONLY not both. .

    Spousal Rights in Georgia

    Currently Georgia is the state that gives a surviving spouse the least amount of rights when it comes to taking a portion of the deceased spouse's estate. Under Georgia law a disinherited spouse is only entitled to receive a monetary allowance from the deceased spouse's estate during the year following the deceased spouse's death, similar to the award of temporary alimony received during a divorce. After that the surviving spouse can't ask for additional support or anything else from the deceased spouse's estate.



  • 10-19-2010 8:17 PM In reply to

    Re: Executors not following a will

    drew

    We've had an update. The wife's position is that because the beneficiary trust is 3.5 million or the then exemption whichever is less- the children, they are saying their father wanted to leave nothing in the trust. The horses ass real-estate attorney sent the childrens lawyer a letter threating to sue him if he doesn't withdraw from case. The attorney recvd a letter from the probate office. Attorney says he has only seen the court do this one other time. Court is set for December

    What concerns should the children have concerning the Estate Tax Law

     

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