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executor malfeasance

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#1 daddyoyo


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Posted 04 July 2009 - 12:47 PM

My wife passed away on 12/25/2004, while we were in the middle of a divorce proceeding. Property distribution had already been settled. I transferred $60,000 to her on 11/22/2004 as part of our agreement. Her will specified that any remaining funds be distributed equally to her three children, two of whom are mine. My children, ages 8 and 13, still live with me, their sole guardian, as does my stepdaughter, now 21. My wife's father was named as executor of the estate. To date we have received no communication from him, nor any distribution of funds. Would it be worth our while to hire an attorney to try to get an accounting? She died without any outstanding debt as far as I know. My wife died in California. We now live in Oregon and her father lives in Arizona. In which state should I seek legal redress? Is the executor financially liable for malfeasance of duties beyond distribution of funds from the estate?

#2 knort4


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Posted 06 July 2009 - 07:55 AM

As of yet you have no proof of any malfeasance.  You can contact the county courthouse probate court (or look at the county court records online) to see if probate was ever opened up for her estate.  If probate was open you can go to the courthouse to look at the file or order copies of it to be mailed to you so you can see how the estate was handled.  You don't know what form her assets were in--is it possible she had a checking or savings account that also had her father's name on it?  If so, then at her death that money automatically became his and if she had no other assets there was no need to file probate.  After you get a better understanding of how her estate was handled, then you can consult with a probate attorney to figure out if there is anything else you need to do.  If she still has assets that have not been probated, you or your attorney can get probate opened up yourself.

#3 Fallen


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Posted 06 July 2009 - 07:56 AM

"Property distribution had already been settled."

I gather this means that you two had entered into a formal property/marital settlement agreement that also addressed a waiver-release by each of you as to the other's property?  

"To date we have received no communication from him, nor any distribution of funds."

Seems to me you've been beyond passive if wife died in 2004 (and your wife's adult daughter, now that she's 21).

"Would it be worth our while to hire an attorney to try to get an accounting?"

Have you even checked with the probate court to see whether one has been filed?  As your minor children's legal representative, you were kinda obligated to keep on top of this.

"In which state should I seek legal redress?"

If your wife was a CA resident, then you'd address this in the CA probate case for starters. 

"Is the executor financially liable for malfeasance of duties beyond distribution of funds from the estate?"

Given you haven't heard a word, it's not clear why you're assuming malfeasance.  Yes, it's possible to go after the executor in AZ if wrongdoing occurred.  Technically speaking, when your kids turn 18, they're free to come after you for sitting on this for years, possibly to their detriment.

I'd get whatever copies of anything on file in the probate action in CA for starters.  Then I'd consult with a local estate-probate attorney in CA.

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)

#4 daddyoyo


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Posted 06 July 2009 - 02:00 PM

In response to knort4 and fallen: The reason that I suspect malfeasance is that the $60,000 which I transferred to my wife a month before her death was part of a marital settlement in which she had agreed that these funds were to go to her children. A will was provided to me to that effect with her father named as executor. I have searched public records for the superior court of Contra Costa County, where she died and probate was not started. I had a divorce attorney at the time who attempted to get more information, but could not. I didn't have the funds to pursue the matter. I had to sell my house and move to Oregon with my two girls, aged 3 and 9, because I had retired early from my job to take care of my children and dying wife. I was informed by one attorney that it would be pointless to pursue the matter because my wife had opened a joint account with a friend who was helping to take care of her a month or so before she died, and therefore had effectively given away her money. However, I've recently researched the possibility that, because the joint account was opened with the express purpose of assisting with my wife's affairs, it could be considered a constructive trust. I haven't wanted to spend my limited resources on legal fees until I can figure out whether I have much of a chance of recovery. I have a hard time believing that she spent the 60,000 she had promised her children in four weeks from a death bed.

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