How can I prove thatan executor has taken money froman estate?

UPDATED: Dec 28, 2010

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How can I prove thatan executor has taken money froman estate?

Money is missing from the estate according to what the deceased stated should show up. The executor will not run a credit report for heirs to see. Lied that they had but didn’t. Is there a way to make them or do they have to if requested? No money for lawyers.

Asked on December 28, 2010 under Estate Planning, New York


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

From the facts presented, it appears that there may have been a breach of "fiduciary duty" by the executor.  Such a duty is the duty implied when someone is put in a position of trust to benefit other, such as that between an executor and beneficiary.  Accordingly, a fiduciary must at all times exercise good faith and put their interests after to the interests of the beneficiaries and/or estate.  Additionally, the executor must follow the law as it pertains to the distribution and handling of estate assets.  The failure of a fiduciary to perform their duties gives rise to a claim.   

Based on the fact that they don't want to a credit report and, I assume, any receipts, account statements, or the like there may well be either fraud, negligence, and/or similar misconduct at play.  Therefore, you can contact the probate court in question and/or directly consult with a probate attorney on all of this.  You can challenge the executor in their fiduciary role and have them removed for breach of their fiduciary duty.  Additionally, you will then need to have someone else appointed who can challenge any transactions/transfers that may have been made which were not in the best interests of the estate and get the money refunded. You will also need to request for an accounting of the estate.  If the executor is bonded (insured) you may also be able to go after insurance money to recoup any losses. Again, a probate lawyer can best guide you in this.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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