Can the executor of a will be challenged?
My mom wants me to be the executor of her estate and a friend of hers told me that he would be challenging me as he believes an outsider with no interest in the estate would be best. My mom is having me help her write her will and her friend told me the fact that it was not written on a lawyers letter head makes it somehow less valid? She has designated everything to go to me but we run into the situation where the house and car have very little value, so their sale likely won't cover everything she owes to Medicaid. My dad was on Medicaid when he was in the nursing home until he passed away in 2008. My mom has been Medicaid eligible since.
I have decided to stay with my mom as we are afraid to leave her alone and nobody checks on her. She has no living siblings or any other living children. No grand children. My mom's friend is afraid if I get booted out, I have no place to go and I might end up living in some rat hole motel. He told me as executor, I might be the one who's forced to sell the house I'm living in and put myself in the street. I had a lawyer tell me I would either have to live with my mom for 2 years and have a doctor sign that it was necessary for me to live with her, have a disability, claim an undo hardship, or make the house so complicated for Medicaid to claim that they wouldn't bother.
Since Medicaid won't see putting a 55-year-old able bodied guy in the street to be an undue hardship, as executor, I will have to evict myself.
- CliveLv 75 months ago
Her friend has no idea what he is talking about. She is entitled to appoint whoever she likes, and the only possible legal challenge to an executor can be after death if the executor is not doing their job properly.
In a situation like yours, it would be perfectly normal to appoint a relative as executor. My mother is much the same - she has left us everything equally and appointed my sister and me as joint executors. This is perfectly sensible and in fact the best way- then it's up to us to sort it out between ourselves when she's gone. She knows we get on well and will do it right. And I wrote the will because it's a very simple one. As in your case - "I give everything I own to my son Robbert and appoint him to be my executor" is the simplest it can be, that's all it needs to say, no fancy legal wording could possibly make that any better, and all you have to do is make sure it's signed and witnessed correctly according to the law of where you are. The most sensible thing is to make you the executor. My Dad's wasn't much more complicated, I wrote that too, and it got through probate with no problems.
I've never heard of a will being written on a lawyer's letterheaded notepaper! What a lawyer is most likely to do is prepare it on stiff legal plain paper.
Unfortunately the rest is less good news. If the debts are greater than what you can sell all her property for, we have an insolvent estate and in the same situation, I would get a lawyer to help me do the job of executor. Everything will have to be sold to pay the debts, including the house, which means nothing left for you, but on the other hand you don't have to pay out of your own money. Medicaid will have to suck on air for the rest. Just like a normal bankruptcy, in fact.
So just a few thoughts but of course I don't know where you are so I don't know the local law about property registration and ownership. So check these through with a lawyer to see if they might work.
It might help to transfer the house into both your names and that would make it more complicated to get you out. I only say might because where I am, the law of equity would say "you didn't actually pay anything towards the house so the value of the house all belongs to the deceased".
Which brings me to the next idea - where I am, if you don't own any of the house but live in it, you can register a caution on the land register. This makes it impossible to sell unless you agree to have the caution removed. This goes back to the days when the husband worked and earned all the money so the house was all his according to equity because he'd paid for it all, the wife stayed at home and kept house, and very often the house was only in the husband's name. Very precarious position for the wife - she could easily become homeless at her husband's whim. But what she CAN do is register a caution, she can do that without telling her husband, then her husband can't sell it without her consent, and she's safe.
Talking of husband and wife brings me to the last idea, which I've talked about with my sister and her husband when I wrote their wills. Where I am, there are two ways of owning a house jointly, joint tenants or tenants in common. Tenants in common each own their proportion of the house and can leave it by will. This would be most appropriate for roommates buying somewhere together. But joint tenants own the whole house together, and if one dies, the other joint tenant(s) automatically inherit(s) the deceased's share, whatever any will says. So as I've said to them, you bought as joint tenants, didn't you? Then whoever goes first, the other is assured of somewhere to live. Basically they got married because it guarantees no death taxes on the house. (That was a big reason for wanting gay marriage - personally as a gay man I don't care two hoots about marriage, but the tax breaks are worth having.)
If you and your mother were joint tenants and that's how the law works where you are, that would be ideal. When your mother passes on, the house automatically becomes yours and Medicaid can't touch it. This is English law and you're obviously American because you mentioned Medicaid, but if the concept of joint tenancy applies in your state, that would be the way to go. Consult your tame lawyer again and if this would work, get him or her to draw up a transfer/conveyance/whatever it's called for Mom to sign that would put the house in both your names as joint tenants.
- jamesLv 75 months ago
Yes. They can. If misdeeds are done. I had the person who had power of Attorney & was executor of a will audited by the State once. Do to personal knowledge money & goods had been removed. There was nothing in it for me. She was just a old friend. But theft is theft. But do have a Attorney write the will & regerster it with the State. This will save you much trouble in the future.
- 5 months ago
Your mm can name whomever she wants. The only challenge would be if you were mentally unfit. No friend of her gets any say in what she decides.
If you are the only child, she doesn't even need a will. You get everything anyway.
You wont' have to evict yourself, you'll just move out.
- David SLv 75 months ago
Her friend knows very little.
In fact, he has no legal standing to challenge her will. Having an attorney prepare it is a great idea, but not necessary.
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- MorningfoxLv 75 months ago
>> he would be challenging me ...
Challenging you when and where? With your mom, okay. With the probate judge, it isn't going to happen. Judges and the law, are VERY much against random friends showing up and claiming to know what's best. There is this thing called "frivolous lawsuit", where the losing side gets to pay all the expenses of the winner.
Also, study up (or better yet, pay a lawyer to explain it to you) about homestead protection. If you have lived in the house for some time (40 months I think), then you're allowed to stay there: you can't be forced to move out. Details are complicated, which is why you need your own lawyer on this, instead of random people on Yahoo.
- TavyLv 75 months ago
Challenge you on what grounds ? It has nothing to do with anyone else, it's your family.
- `Lv 75 months ago
Your mom should consult a wills and estates attorney who can help her write a will. Tells your mom's friend to mind her own business.
- tellitlikeitisLv 75 months ago
No-one can challenge the Executor of a legally made Will, provided you deal with her affairs per her Will after her death. Just tell him to get a life and some better knowledge.
That said, 'helping your mom write her Will' is a) not the job of an Executor, and b) highly dangerous, as you need expert legal advice to draw up a Will which will pass the scrutiny of Probate. Pay a lawyer to help you get the job done properly.
You seem to be listening to all of the wrong people and none of the right ones.