Dear Moneyist,
I am one of four children and my father died naming my brother the executor of his will.
My father died with no debt, and a home that was mortgage free in the best neighborhood. He had worked for the same company for over 45 years with a pension and savings throughout his life.
My brother and his wife moved into dad’s home even though they own their own home. They changed the locks, and hired an alarm company so no one could enter the property. They also refused to give anyone a copy of the will until after he presented it to the court, so they claimed.
They began blowing through my dad’s money (using his accounts, credit cards that were in dad’s name only) and refused to present and perform the duties of executor. My brother and his wife were in serious financial debt prior to dad’s death. When I confronted my brother, he blocked me on social media, and has refused to talk to me ever since.
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My brother was my best friend. His actions have destroyed me to the core. During all of these events, he and his wife divorced. She initiated the divorce when the money ran low. She filed for bankruptcy while still spending and taking exotic trips, which she posted all over Facebook.
I sent my brother money throughout this time to help with divorce costs, and begged him to show up at her bankruptcy hearing and acknowledge that they committed fraud. He still refused to speak to me.
I am so hurt by this whole situation. My dad, a hard working Vietnam vet, lies in an unmarked grave, which is ridiculous because he had a substantial amount of money, including funds from a $25,000 insurance policy from my grandfather.
I feel cheated and used. I don’t even have a picture of my parents. I need closure and I want to pursue criminal charges against my brother and my former sister-in-law through the state attorney general’s office.
I’ve spoken to several lawyers in this small town, and everyone says, “Let it go, your brother is a good guy.” Meanwhile, I’m supposed to suffer in silence with no relief. I tried and I can’t. I wake up daily crying from it all.
I have no relationship with my sisters. One sister stole my identity in the past, causing me great distress and financially ruining me. My brother knew this, so his actions hurt that much more.
Ready to Take Action
Dear Ready to Take Action,
It seems that you want justice for your father and peace of mind for yourself. Those two things can be mutually exclusive. You can have one without the other. If you do not succeed in prosecuting your brother for breaking his fiduciary duty as the executor, it does not mean that you can’t move on.
Not everyone is willing or able to take responsibility for their actions, and that’s OK. Your biggest responsibility is to yourself. Whatever happens with your father’s home and what’s left of his estate, and whatever becomes of your brother, you want to be free. That is your ultimate goal.
There is a statute of limitations on wills, and the clock usually starts ticking after the will has been filed with the probate court. Of course, we don’t know for sure if your father’s will was filed with the probate court and, if there was no will, his estate would still need to go through probate.
The statute also varies by state. There are different deadlines for trusts and wills that apply to different claims, and those statues can change depending on circumstances, according to Albertson & Davidson, a law firm in El Segundo, Calif.
“You must contest a will before it is admitted to probate,” the law firm states. “If a will is admitted to probate, then you have 120 days in which to ask the court to revoke probate. After that time frame, the will cannot be challenged.” It is not clear whether your father’s will was filed.
“Probate is a court process by which the court first determines if a will is valid, then appoints an executor to administer the will in a court-supervised process. When a court issues an order declaring the will is valid, we call this ‘admitting the will to probate,’” the firm adds.
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There is possible good news for your case: “If you want to sue a trustee for breach of trust, then you have three years to do so from the date you knew, or should have known, of the facts giving rise to the breach,” according to Albertson & Davidson.
But if you are never given an accounting or a report, there is no statute for fraud. “If you did not know what the trustee did, and the trustee never gave you an accounting or written report disclosing his actions, then your deadline to sue remains open indefinitely,” it says.
“Obviously, you should not wait forever to take action against your trustee,” the law firm says. “At some point in time, it will become difficult, if not impossible, to hold your trustee liable for harms if you do not take action.” You need to find a reputable law firm in your town or state.
Like I said, the deadline on taking action differs from state to state, but this gives you an idea of what you’re facing. Failing that, you may wish to make peace with the fact that your brother cannot be the brother you want him to be, nor can he be the son your father thought he was.
In the meantime, the Department of Veteran Affairs will provide, at no charge, a headstone or marker for the unmarked grave of any deceased eligible veteran in any cemetery around the world. You can say goodbye to your father, and thank him for the life he gave you.
But your happiness cannot and should not depend on the outcome of this case or the resolution of the broken relationship with your brother. Your father gave you the tools during your lifetime to seek the kind of life you want for yourself, independent of the misdeeds of others.
This is the most important goal for you to pursue.
You can email The Moneyist with any financial and ethical questions related to coronavirus at [email protected]. Want to read more?Follow Quentin Fottrell on Twitterand read more of his columns here
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