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"Executrix" Inaction


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#1 KayakAngler

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Posted 22 January 2013 - 08:26 PM

My aunt died in mid-2010 in Ohio after relocating from Florida leaving an estate of approximately $1 million. She had two nieces, me and my sister, as surviving next of kin. I live in California, and my sister lives in Ohio.

Shortly after my aunt's passing, my sister stated that the decedent had a will in which she was named as executrix. She also stated that the estate was to be split between us, and that the will makes me executrix in case my sister is unable to perform her duties.

Recent converstions with my sister indicate that she has not yet filed the will with probate court. Also, she has not shared a copy of the will, nor any written accounting of the assets with me to date.

My sister has a 30 year history of alcoholism, and I believe she is showing signs of alcohol dementia, namely apathy and an inability to accomplish tasks.

I question my sister's competecy to be executrix. It's been 2.5 years since the decedent's death, and there appears that little, if anything, has been done.

What can I do to get things moving? How can I get around my sister's apathy and inaction?

#2 Tax_Counsel

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Posted 22 January 2013 - 11:35 PM

Recent converstions with my sister indicate that she has not yet filed the will with probate court. Also, she has not shared a copy of the will, nor any written accounting of the assets with me to date....What can I do to get things moving? How can I get around my sister's apathy and inaction?


Very first thing to do: contact the probate court that covers the county where your aunt resided when she died and find out if probate was ever even opened. If not probate was opened and your sister was never named executrix by the court, then you hire a probate attorney in Ohio to start probate and seek to have you appointed as the estate personal representative. From there, you can then take action to force your sister to give you the will so you can file it with the court and to have her turn over all assets of your aunt’s which are still in her possession as well as account for all estate assets that your sister ever had. You really should have taken action long before this. Particularly given that she’s an alcoholic, I’d be greatly concerned here about how much of the estate she’s already spent or wasted. The longer you do nothing the more likely it is that there won’t be much for you to get from the estate.

#3 harrylime

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Posted 23 January 2013 - 03:20 AM

Just wanted to add...

Ohio had its own estate tax until 1/1/2013, with an exclusion of only the first $338,000 and payment due 9 months after the date of death. There is interest (and probably penalties for not filing) accumulating.

Further delays will only cost the estate more.


ADDING:

From the Ohio Department of Taxation:

Ohio estate tax returns filed late are subject to penalty, and late payments are subject to interest. Penalty is assessed at 5% per month, or any fraction of a month, not to exceed 25% of the tax as finally determined. Interest on any tax due begins to accrue at variable rates 9 months from the date of death regardless of the extended due date of the return, and continues until payment is made.

#4 pg1067

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Posted 23 January 2013 - 08:20 AM

Recent converstions with my sister indicate that she has not yet filed the will with probate court.


Mid-2010 was two and a half years ago. What did you suppose had been going on during that time since you obviously have no received any sort of notices regarding probate of the estate, etc.?


Also, she has not shared a copy of the will, nor any written accounting of the assets with me to date.


As far as the will, have you asked her for a copy? If not, why not? If so, what was her response? As far as an accounting, I'm not sure what you mean. If, in fact, probate has not been started, your sister is nothing more than a person nominated in a will and is not actually the executrix. Accordingly, she has no power or obligation to do anything (except, perhaps, to deposit a copy of the will with a court).


My sister has a 30 year history of alcoholism, and I believe she is showing signs of alcohol dementia, namely apathy and an inability to accomplish tasks.


All of which makes the passage of two and a half years without you doing anything even more surprising.


What can I do to get things moving? How can I get around my sister's apathy and inaction?


I suggest you consult with a probate attorney in the area in Ohio where your aunt lived at the time of her death. I don't know whether it would be practical or advisable for you to seek appointment as executor, but that's something you should discuss. If not, you could seek to commence probate and support the appointment of some local person or entity as executor. Of course, since your sister is allegedly nominated in the purported will, if she resists, she may have the upper hand. Her failure to do anything for two and a half years would work against her, but I can't say it would be dispositive, and it may be very difficult for you to prove your allegations regarding alcohol abuse. In any event, these are the sorts of things you should discuss with the attorney.

#5 FindLaw_Amir

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Posted 23 January 2013 - 08:55 AM

I agree the previous poster, this is a matter you may wish to discuss with a local Ohio Probate & Estate Administration Lawyer to address.
FindLaw's Legal Heads-Up! newsletter can provide you with the legal resources you need to make informed decisions when law touches aspects of your everyday life.

#6 KayakAngler

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Posted 23 January 2013 - 05:05 PM

Thank you all for your prompt and insightful replies!

Recent Developments: I spoke with an Ohio probate atty this AM. His suggestion -- send sister a lawyer letter
• requesting her to file the will and have her atty contact him
• saying if no action in X days, we will be forced to file as if there's no will w/ me as exec
• if sister initiates action but then stalls, she will be violating court timelines
• retainer $5k, may be able to have it taken from the estate

Tax_Counsel:
• the atty said he'd check with the court and find out if probate was ever opened
• as to my delay, around the date of death my husband was dianosed with a crippling chronic disease -- I became his primary care giver, in addition to my full-time job
- also, many alcoholics are quite functional despite their drinking
- this has always been the case with my sister, until recently
- earlier on I was afraid that any direct inquiry would be construed as a lack of trust
- this could have damaged a relationship I valued
- my husband and I are financially OK, so we had no pressing financial need
• sister has formerly been financially independent, reliable, and honest
- until recently I had no reason to believe that her situation has changed
- however, I now realize that now anything is possible

harrylime: Thanks! The atty made that same point this AM.

pg1067: I'm not a lawyer! I assumed these things take time. Also, I had a lot on my plate, and never doubted my sister's ability to perform her fiduciary duty, until recently. Please see my reply to Tax_Counsel above.

> As far as the will, have you asked her for a copy? If not, why not?
• covered this in my reply to Tax_Counsel

> If, in fact, probate has not been started, your sister is nothing more than a person nominated in a will and is not actually the executrix
• Acknowleded, this is why I put executrix in quotes in my post's title.

> All of which makes the passage of two and a half years without you doing anything even more surprising
• covered this in my reply to Tax_Counsel
• respectfully disagree: given my husband's situation, my full-time work, my desire to maintain cordial family relationships, my lack of legal knowledge, my sister's long previous history of honesty and financial reliability, and my lack of pressing financial need, I think I acted reasonably
• hindsight is a wondeful thing, because things previously clouded in doubt appear obvious; unfortunately, I can't go back in time

> it may be very difficult for you to prove your allegations regarding alcohol abuse.
• agreed; as I stated above, many alcoholics are quite functional despite their drinking, this has always been the case with my sister, until recently
• right now the atty's suggestion makes sense -- send her a lawyer letter, monitor her subsequent behavior, and take action based on how she responds

FindLaw_AHK: Thanks for the link! I'll be talking with another atty tommorow. I think two opinions will suffice. Any thoughts on things to look for, or questions to ask that might help my choice of atty?

#7 harrylime

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Posted 24 January 2013 - 05:15 AM

Unfortunately, it sounds like you are going to be "long distance" in much of this. I think one of the most important things in the attorney-client relationship is rapport or compatibility - someone that you feel you can work with and trust. It is tough to get a feel for that over the phone. It would be nice if you could ask any relatives or friends in Ohio if they have recommendations. But, I would say that time is of the essence here. Other than that:

1) Have a clear understanding of what the attorney is going to do. And what you are going to do.
2) Be clear on the attorney compensation arrangements. Not just the amount of the retainer, but the hourly rate.


I don't know how mean and nasty you might want to get with your sister, but you might want to take a look at these sections of the Ohio Revised Code and, at least, keep them in your back pocket:

http://codes.ohio.gov/orc/2107.09

http://codes.ohio.gov/orc/2107.10

#8 KayakAngler

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Posted 24 January 2013 - 10:53 PM

harrylime:

Thank you so much! Yes, long distance it must be. Atty #2 gave me his e-mail address, so I sent him info in advance of our phone consult. As a result, he understood the situation quicker, and was more organized. His plan was a better too.

Both attys suggested we start the flame on low and turn it up later, if need be. I don't know how mean and nasty this is going to get, but the law you referred to is a comfort to me, just in case.

Any idea what might be some common examples of "reasonable cause" under ORC 2107.10 (A)?

Also, thanks for your valuable suggestions regarding fees, etc. You've been a great help!

#9 harrylime

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Posted 25 January 2013 - 05:11 AM

Any idea what might be some common examples of "reasonable cause" under ORC 2107.10 (A)?


I think that is one for your attorney. Researching how the Ohio courts have interpreted ORC 2107.10 is a bit much - at least for me. But I will give you my conjecture (a pretty word for a guess):

Most, if not all states, have statutes similar to ORC 2107.09, making a party that does not produce a will subject to any injured party's damages and even some 5-star dining down in county. But I don't recall seeing any states that have penalties as severe as those contained in ORC 2107.10. My guess is that the courts are probably reluctant to impose those penalties except in really egregious cases. Therefore, my guess also would be that phrases such as "power to control," "intentionally," and "neglects or refuses" have been interpreted fairly narrowly. And "reasonable cause" has been interpreted pretty liberally.

Once probate does get opened and any tax mess is taken care of, I personally think that you would have a good case for asking the court to charge any tax-related penalties and interest solely against your sister's share of the probate estate in line with ORC 2107.09.

(As I think one of the other responders mentioned, I would not be surprised if a number of other cans of worms are discovered. $1 million in assets... Just sitting for 2.5 years... That's a lot of temptation and, while she should not have been able to, it would not be surprising if sister somehow managed to dip into those assets.)

#10 KayakAngler

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Posted 25 January 2013 - 02:41 PM

harrylime:

> Therefore, my guess would be that phrases such as "power to control," "intentionally," and "neglects or refuses" are interpreted fairly narrowly. And "reasonable cause" is interpreted pretty liberally.

• that's what I expected, thanks!

> a good case for asking the court to charge any tax-related penalties and interest solely against your sister's share of the probate estate

• agreed.

Progress report:
• atty #2 empathetically called sister with my permission
• sister accepted his offer of assistance, saying she felt overwhelmed
• sister made an appt with atty #2, agreeing to bring in all the papers

Question:
• if sister cooperates and is appointed, will Atty#2 be able to keep me informed?
- i.e. will there be a confidentiality issue?

Thanks again to all responders! You can't imagine how helpful you've been.

#11 harrylime

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Posted 26 January 2013 - 05:20 AM

Question:
• if sister cooperates and is appointed, will Atty#2 be able to keep me informed?
- i.e. will there be a confidentiality issue?


If your sister retains the attorney, then she is the attorney's client. Strictly speaking, other than required communications that the executor chooses to have the attorney send, the attorney should not be communicating directly with the beneficiaries without the client's permission. Some attorneys will - usually in situations where all the parties know each other and there are no issues. But I would say that most will not without that authorization from the client.

In your situation, I would try to get your sister to put in writing to the attorney that the attorney has her permission to communicate directly with you.

Some states require that a copy of the initial inventory submitted to the court be sent to beneficiaries; some do not. I do not know for Ohio. But, if it isn't required, I would push for an understanding that a copy be sent to you. I would also push for a copy of the estate tax return when it is completed and submitted to the state.

Typically, between the opening probate and appointment of the executor (and, depending upon the state, notice that the inventory has been submitted) and the time that administration is being wrapped up and the probate case closed, there is not much, if any, required communication to beneficiaries. Try to get a clear understanding of what will happen and the timeline. This may take awhile (especially if your sister has not been keeping things like account statements since your Aunt's passing). Try to exercise some patience.

#12 KayakAngler

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Posted 28 January 2013 - 02:08 PM

harrylime: I'm going to mention my concerns to the atty. I'll be patient, but I want to be informed. I'm afraid sister has a history of bad decisions regarding this matter. Thank you for your sage advice!




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