Alternatives to Litigation during Estate Disputes

Article excerpt

Fred did a will before he died that appointed a friend to act as his executor. The will directed that his estate was to be divided between his two children. They were adults, but Fred thought he would do them a favour by letting his friend, Max, do the job. Max had already served as executor for two other people. Max knew the ropes.

That did not mean things went well. The children thought Max worked too slowly. They were eager to get their inhertances and called him and emailed frequently. He thought they were being ungrateful. They thought he was being high-handed. He sat on emails and did not respond immediately -- trying to let them know they could not order him around like a lapdog. The children threatened to hire a lawyer -- trying to let Max know that they would not sit idly by while he dithered. Frustrations escalated. Everyone was surprised at how quickly things became uncivil.

What happens when an estate comes off of the rails? Legally, the beneficiaries have rights. During the 12 months of the estate administration, called the "executor's year," they are supposed to leave the executor alone and let him or her get about the job, free of interference. As the executor's year draws to a close, the beneficiaries have the right to call upon the executor to render accounts and release assets, if they are ready, to the heirs. At that stage, the executor should be prepared, at a minimum, to share financial information and make a progress report relating to the administration of the estate.

If the executor refuses to share that information, the beneficiaries can demand an accounting from the executor and go to court if it is not forthcoming. The executor is then generally expected to render written accounts and file them at the courthouse detailing where things stand. An executor who does a bad job, or who steadfastly refuses to share financial details, can be removed by the court and replaced with another executor more likely to get things done.

The courts, however, tend to look at that as a last resort. Beneficiaries can spend a lot of money on lawyers while trying to force the executor's hand, only to see the executor be given extensions and latitude from the court. That is a huge frustration. …