When does the duty of an executor end? My two brothers were appointed co-executors of my Moms will. Probate has been done for months now. We all 3 inherited her house in equal shares, two of us live there. I am being told because they were executors that they can decide to sell, without my consent as they are still in charge, due to being executors. Is this true? I was under the impression that when probate was settled and all the affairs of the deceased person had been settled, that the duty and/or authority of an executor is done.
If three people inherited a house in equal shares, then a new deed should have been prepared and filed with the appropriate governmental authority (the county in most US states) before probate is closed. When that is done the authority of the executors over the house as executors has ended. However, if I understand you correctly, the two former executors are also two of the three heirs to the house. Thus they own a 2/3rds interest in the house. At least they can sell their interests without your consent, leaving you a minority owner with the purchaser owner a majority. In some jurisdictions they may be able to force a sale, paying you your share of the purchase price. But this would be because of their majority ownership, not because of their former status as executors. Addition: In some states co-owners who are joint tenants may not sell their interests without the consent of the other co-owners, but this is jnot true in North Carolina According to the site of the Hutchens Law office: ownership as tenants in common provides each party with the right to sell, gift, devise, or otherwise convey their interest in the property without the permission of the other owners. This means that the ownership interest is freely alienable or transferable. As a result, an owner may sell or give their interest in the property to anyone they want, or they may willingly or by judgment use their interest in the property to secure or satisfy a debt with a creditor. Therefore, parties entering into an agreement to purchase property as tenants in common should be aware that they may ultimately end up owning the property with a stranger. If this were to happen, there is a way out, but it may be costly. At any time, if the parties can't agree, any owner may petition the court for a partition of the property. The court could require one owner to buy another out or force the sale of the property. The court will decide the ultimate outcome based on equity. ... [I]f the intent of co-owners holding interest as joint tenants is to automatically transfer their interest at death to the survivor, the language must be on the conveying instrument as right of survivorship is not automatic with joint tenancy in North Carolina and if the language in not included, the decedent's interest will pass to his heirs. ... However, any owner has the right to convey their ownership interest during their life; and if they do, the survivorship agreement ends, and owners simply become joint tenants by operation of law. In North Carolina there seems to be little practical difference between co-owners who are tenants in common, and those who are joint tenants without a right of survivorship. But whichever form of co-ownership is chosen: tenants in common, joint tenants without a right of survivorship, or joint tenants with a right of survivorship, each of the co-owners has a right during his or her lifetime to sell, give away, or use as collateral on a loan his or her share of the property, without consulting the other co-owners. They cannot force the other co-owner(s) to sell, except by starting an action of partition in a court, when a judge would decide. An unrelated buyer might be unwilling to purchase only a 1/3 or 2/3rds interest, because the remaining co-owner(s) would still have full rights to use and occupy the house, can could sell to a different buyer. All co-owners are responsible for their proportionate shares of all expenses, including mortgage payments, repairs, and taxes.
No. This is not a provision that the testator or testatrix (i.e. the person writing a will) may waive in advance. But, the slayer statute does not get invoked unless an interested person invokes it in a probate proceeding after a death, and if no interested party wishes to invoke it, the will would be given effect anyway (just as it would in a case where no one could prove that someone was a slayer). Some states apply the slayer statute to will substitutes, and some do not. Similar laws that revoke dispositions upon divorce are pre-empted for interests in employee benefit plans subject to ERISA, but the U.S. Supreme Court has declined to resolve the issue. See Egelhoff v. Egelhoff, 532 U.S. 141, 152, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (pre-empting divorce revocation statutes, but declining to decide whether ERISA preempts state statutes forbidding a murdering heir from receiving property as a result of the killing) (cited as good law in Kennedy v. Plan Administrator, 555 U.S. 285 (2009) at footnote 14); Wasserman v. Schwartz, 364 N.J.Super. 399, 836 A.2d 828 (2001) (circumventing ERISA pre-emption). But see, Herinckx v. Sanelle, 281 Or.App. 869, (Oregon App. October 26, 2016) (Oregon slayer statute pre-empted by ERISA and reviewing variations in state slayer statutes). A notable comprehensive review of the California and common law rules regarding how the slayer statute applies in murder-suicide cases where the victim and suicidal killer own property in joint tenancy is found in In re Estate of Castiglioni, 47 Cal.Rptr.2d 288, 40 Cal.App.4th (Cal. App. 1995). The murder-suicide scenario is also addressed in depth in the case In re Gleason, 947 N.Y.S.2d 761, 36 Misc.3d 486 (Surrogate's Court 2012). Also, the definition of homicide that qualifies under the slayer statute sometimes covers only certain forms of homicide. For example, it might apply in cases of murder or manslaughter, but not in cases of negligent homicide. Alaska, for example, takes the minority position that unintentional homicides suffice to invoke the slayer statute, subject to a manifest injustice exception. In re Estate of Blodgett, 147 P.3d 702 (Alaska 2006).1 There is unsurprisingly little or no case law on an intentional waiver of these provisions, and assisted suicide would often not qualify as an eligible homicide although this would vary from state to state. But see, Colorado Proposition 106 (adopted by voters November 8, 2016) as it pertains to insurance benefits. A Sample Statute The currently effective section of the Colorado Revised Statutes (modeled on the Uniform Probate Code, which is highly influential to legislative drafters and in courts with common law rules, but is not actually adopted verbatim by a majority of states) which are applicable to this issue reads as follows: § 15-11-803. Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument. (b) "Felonious killing", except as provided in subsection (7) of this section, is the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter, as said crimes are defined in sections 18-3-102 to 18-3-104, C.R.S. (c) "Governing instrument" means a governing instrument executed by the decedent. (d) "Killer" is any individual who has committed a felonious killing. (e) "Revocable", with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself or herself in place of his or her killer and or the decedent then had capacity to exercise the power. (2) Forfeiture of statutory benefits. An individual who feloniously kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective-share, an omitted spouse's or child's share, the decedent's homestead exemption under section 38-41-204, C.R.S., exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his or her intestate share. (3) Revocation of benefits under governing instruments. The felonious killing of the decedent: (a) Revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and (b) Severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. (4) Effect of severance. A severance under paragraph (b) of subsection (3) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership. (5) Effect of revocation. Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. (6) Wrongful acquisition of property. A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrong. (7) Felonious killing; how determined - time limitations on civil proceedings. (a) Criminal proceedings. After all right to appeal has been waived or exhausted following the entry of a judgment of conviction establishing criminal accountability for the felonious killing of the decedent, such judgment conclusively establishes the convicted individual as the decedent's killer for purposes of this section. (b) Civil proceedings. Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established. If such elements have been so established, such determination conclusively establishes that individual as the decedent's killer for purposes of this section. (c) Time limitations on civil proceedings. (I) A petition brought under paragraph (b) of this subsection (7) may not be filed more than three years after the date of the decedent's death. (II) Notwithstanding any provision of subparagraph (I) of this paragraph (c) to the contrary, if a criminal proceeding is commenced in a court of this state or in another jurisdiction against an individual for the felonious killing of the decedent, a petition brought under paragraph (b) of this subsection (7) may be filed so long as the petition is filed no later than one year after all right to appeal has been waived or exhausted following an entry of a judgment of conviction, or a dismissal, or an acquittal in the criminal proceeding. However, if the death and the possible culpability of the slayer for the felonious slaying of the decedent is not known to the petitioner within the three-year period of limitations established pursuant to subparagraph (I) of this paragraph (c), the accrual of the action under paragraph (b) of this subsection (7) and the possibility of the tolling of the running of the three-year period of limitation under subparagraph (I) of this paragraph (c) shall be determined according to the principles of accrual and tolling established by case law with respect to similar limitations established under section 13-80-108, C.R.S. (d) Judgment of conviction. For the purposes of this subsection (7), a "judgment of conviction" includes a judgment of conviction on a plea of guilty or nolo contendere, or a judgment of conviction on a verdict of guilty by the court or by a jury. (8) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a felonious killing, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party has received written notice as described in paragraph (b) of this subsection (8). A payor or other third party shall have no duty or obligation to make any determination as to whether or not the decedent was the victim of a felonious killing or to seek any evidence with respect to any such felonious killing even if the circumstances of the decedent's death are suspicious or questionable as to the beneficiary's participation in any such felonious killing. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (8) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (8), a payor or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (9) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. 1 The other four states and District of Columbia arguably adopting the minority position that negligent homicide invokes the slayer statute are as follows, from footnote 5 of the dissent to the Alaska Supreme Court's decision cited above. The District of Columbia slayer statute covers homicide resulting from grossly negligent conduct. See Turner v. Travelers Ins. Co., 487 A.2d 614, 615 (D.C.1985) (explaining that the slayer statute covers "unintentional killing derived from reckless or grossly negligent conduct"). Louisiana's slayer statute covers all criminal homicide. In re Hamilton, 446So.2d 463, 465 (La.App. 1984) (holding that slayer statute "was intended to include situations such as that presented by this case, where a beneficiary does not intentionally and feloniously cause the death of the insured but is nonetheless held criminally responsible for that death"). North Carolina's common law slayer rule prohibits inheritance after any wrongful homicide. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563, 567 (1975); Matter of Estate of Cox, 97 N.C.App. 312, 388 S.E.2d 199, 201 (1990). The continued application of this common law rule has been criticized in light of a slayer statute barring only intentional killers from inheriting. N.C. GEN. STAT. § 31A-3; see also generally Julie Waller Hampton, The Need for a New Slayer Statute in North Carolina, 24CAMPBELL L. REV. 295 (2002). Kentucky Revised Statute § 381.280 bars inheritance from those convicted of any felonious homicide. "Reckless homicide" is a felony. KRS § 507.050. Kentucky defines "reckless" as "a gross deviation from the standard of conduct that a reasonable person would observe." KRS § 501.020. Reckless homicide in Kentucky is therefore equivalent to criminal negligence in Alaska under AS 11.81.900(a)(4). Kansas Statute § 59-513 states that "[n]o person convicted of feloniously killing, or procuring the killing of, another person shall inherit." Involuntary homicide under Kansas law extends to "killing of a human being" committed recklessly, during a misdemeanor, or "during the commission of a lawful act in an unlawful manner." KS ST§ 59-513. This arguably could extend to grossly negligent conduct, especially as KS ST§ 21-3201 explains that "[t]he terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'wantonness' are included within the term 'recklessness' as used in this code." A federal district court has held that Kansas's slayer statute does not apply to negligent homicide, and there appear to be no state cases interpreting the scope of the statute or applying it to negligent homicide. Rosenberger v. Nw. Mut. Life Ins. Co., 176 F.Supp. 379, 382–83 (D. Kan. 1959) (explaining that "the intent of the legislature in enacting the statute must have been to give effect to the common-law rule"). The Kansas slayer statute is essentially unchanged since Rosenberger.
Let's say the trustee runs into a situation where the beneficiary demands some action, and the trustee thinks this action is a really, really bad idea. Then the trustee can either say "no". Or the trustee can say "yes" and be liable (so if the action is a really bad idea then the trustee won't do this). The trustee can NOT say "yes if you sign this paper that I'm not liable for the result of this action", because the job of the trustee is to protect the beneficiary and he wouldn't be doing that.
In the US, when a person has unpaid debts and dies, those debts are to be paid from any assets of the estate (as in, any assets). The executor has the responsibility to use those assets to pay the debts. Presumably the executor did that, and there are no co-signed accounts or anything like that, so your mother isn't responsible for these debts in some obscure way. The Fair Debt Collection Practices Act has a provision that you can tell a collection agency to stop communicating with you, and they must then stop communicating with you except to say they are stopping attempts to collect, to indicate possible remedies (i.e. lawsuits), or notify of an actual remedy (they have actually filed suit). Since they are no longer allowed to discuss anything with you once you give them the go-away notice, one should probably hire an attorney to exercise the nuclear option. You can also request proof that you owe the money: they are suppose to notify you of the right to dispute the debt with 5 days of first contact, which gives you 30 days to dispute the debt. Persuading a debt collector that they are pursuing the wrong person is probably easier than persuading a jury in a lawsuit.
What can I do to prevent someone from leaving me something in their will? Nothing. Allowing other people to legally change someone's will defeats the purpose of a will: To express the writer's last wishes. (That is why the full title is a "Last Will &amp; Testament"). Do I have to take responsibility for things left to me in a will or are there other options? No! You do not have to accept an inheritance. The legal process for rejecting an inheritance is called "disclaiming." It happens often enough that there are plenty of nice summaries of the process on-line. Your next step should probably be to read one of them.
A lien is used to prevent sale of a property until a debt is paid. This has nothing to do with priority over a mortgage. The HOA agreed to release the lien for some payment. The negotiation of that payment doesn't matter to the new buyer. Once the lien is released, then it is no longer listed with the county on the property, so the property can now be sold. The former lienholder cannot now apply a new lien to the property because the new owner is not a debtor to the former lienholder. This would be a terrible way to manage property sales, and no mortgage company would allow a mortgage for a property that could not be sold in case of foreclosure, which is likely why the mortgage holder was a private individual. It is possible for a new owner to take on existing liens, but this would be clearly spelled out in purchase documents. There should be a statement on the title search results that no liens exist.
The personal representative is empowered by law (esp. §3311) to undertake actions on behalf of the deceased, and enjoys certain legal immunities against personal liability for their actions. The personal representative can do things that a random person off the street can't do. Until you are appointed by the Register of Wills as personal representative, you aren't a personal representative. There are provisions for limited disposition of the estate without letters of testamentary such as paying employees of the deceased, paying the funeral home, but not in general any &quot;non-emergency&quot; distribution / disposal. Even with appointment as PR, one has a fiduciary obligation to equitably distribute the estate. That means that the PR has to respect the interests of both of the heirs. If the PR decides that some object is trash and throws it out, they could be liable to an heir who has an interest in the object. Of course, the heir with that interest may have to take the PR to court, so normally people just talk this out. As an intermediate step, an heir's attorney can write a letter to the PR advising them of the legal ramifications of breaching their fiduciary duty.
While the state, or a creditor, can initiate a probate if no one else does (if the state does so, the official in charge of this is called the "public administrator"), neither are required to do so. Also, sometimes a guardianship is converted to a probate, but this doesn't appear to have happened. This is a thankless job that probably doesn't make sense to bother with if estate liabilities exceed the assets of the estate, but most states have a "non-claim statute" that bars creditors claims, other than liens including property tax liens, after a certain amount of time after the death. So, even if the estate may have been insolvent at death, if enough time has elapsed, many of the potential claims may now be barred, making the estate solvent again. Siblings generally have priority for appointment over a nephew, so to be appointed yourself, you would ordinarily have to receive a renunciation of their right to serve as executor before applying to do so yourself, but some states disregard that priority if no one has taken action after a certain period of time. You would initiate probate by contacting an Alaska lawyer in the vicinity of the place he was domiciled at death. The lawyer can review the guardianship court file, determine if an executor was appointed, and determine if there are assets that could justify opening an estate relative to lien debts including Medicaid liens. If there are not, letting the assets be lost to a property tax lien may make more sense that spending money to transfer his property in an orderly fashion to his creditors with nothing in it for any of his family.