named executor is also a debtor of the estate

middlesis

Hi everyone, I am new to this so please bear with me. but my question is this - my older sister has been named as executor to my mothers will, however she and her 2 daughters owe my mum a large sum of money (about 30K) and they are quite clearly in financial difficulties. Although she acknowledges the debt, she refuses to discuss it and takes a rather superior attitude about being the eldest sibling. My younger sister and I feel quite worried as the three of us are equal beneficiaries along with our children, and are thinking that there may be a significant conflict of interest between her roles of beneficiary and executor. I have to say here, that Mum is still alive and kicking, but at 87 yrs old and with dementia she finds making important decisions confusing and will do or say anything for a quiet life. This is a rather short-winded version, but I hope someone could maybe point us in the right direction before it spirals out of control. Thank you all.

Yorkshireman99

middlesis wrote: »

Hi everyone, I am new to this so please bear with me. but my question is this - my older sister has been named as executor to my mothers will, however she and her 2 daughters owe my mum a large sum of money (about 30K) and they are quite clearly in financial difficulties. Although she acknowledges the debt, she refuses to discuss it and takes a rather superior attitude about being the eldest sibling. My younger sister and I feel quite worried as the three of us are equal beneficiaries along with our children, and are thinking that there may be a significant conflict of interest between her roles of beneficiary and executor. I have to say here, that Mum is still alive and kicking, but at 87 yrs old and with dementia she finds making important decisions confusing and will do or say anything for a quiet life. This is a rather short-winded version, but I hope someone could maybe point us in the right direction before it spirals out of control. Thank you all.

How much is your mother's estate likely to be worth? Being a creditor of the estate does not debar anyone from being an executor but they are obliged to act strictly in the interest of the estate not themselves. Assuming the estate has sufficient funds the the amount must be deducted from any payout to the creditor. It is important that the exact amount due is established. It would be better for the creditot to reniuce her role as executor so there is no conflict of interest. Do not allow her to bully you in any way. You might want to make it clear that debtor IS going to have to pay one way or another and that failure to act in the interests of the estate is a very serious matter.

middlesis

Thanks for your quick reply. Mums estate amounts to property worth £500k and cash assets of about £45/50k at present. Little sis and I both think that big sis might be wise to "resign" as executor to prevent any slinging of mud in the future. However she is taking her role as eldest sibling as some sort of divine right to ride roughshod over the rest of us. She acknowledges the debt totally and says that she will knock off the amount owing when it comes to distributing the assets. We want to believe her, but as she has wheedled a fair amount of cash out of mum already, our level of trust is minimal. She is mortgaged up to the hilt and has maxed out all credit cards and doesnt have a job. We are worried that once she has control over mums assets the temptation may just be too much. I dont like speaking ill of my older sister and am sure this is a result of her sticking her head in the sand, instead of admitting that she really needs help. That said, little sis and I get very upset and angry that she is making a mockery of what my lovely late dad and mum (still with us) wanted for their family. She also has POA along with little sis (severally - also worryingly). Little sis is seeing accountant this week and also has appt with a solicitor dealing with elderly and vunerable next week to see if we can get things sewn up a lot tighter because we dont really want to go down the route of costly court cases. We all say "its not just about the money" but sometimes it comes down to just that, which is a very sad and sorry state of affairs. No easy answers i,m guessing

TBagpuss

What view does mum take of it? Is your eldest sister the only executor?
The obvious answer might be for mum to (i) amend the will to include at least one, if not both, you and your sister as executors as well, and (ii) to suggest that you mum keep a letter with the will setting out that the debt owed by elder sister is to be repaid from her share of the estate and that it is not, and is not to be treated as, an additional gift.

With the POA your younger sister will be able to keep an eye on things - elder sis would be able to act independently but not to withhold information, and in both scenarios (POA and Executor) your sister has formal legal responsibilities.

So the options are

- to speak to your mum, so she can change the will and POA now, and appoint you and your younger sis. This has the advantage of addressing your current concerns, and you could perhaps sell it to your mu as 'elder sister has so much on her plate, and a lot of stress due to her debt, it's not fair to expect her to do it' as well as worry about if she would do it properly. the down side is that sister would know (at least about the POA) and be hurt.

- speak to your mum and encourage her to change the will. This would potentially be less controversial as it could be justified to your sister as 'eldest and youngest as attorneys, middle and younger as execs, so the workload is spread and no-one is left out


- leave things as they are, but for younger sister to be pro-active about being involved and keeping a close eye on finances, and challenging anything untoward.

Savvy_Sue

Making a new will or altering the PofA or getting mum to sign a letter are all tricky if mum has dementia. Not necessarily impossible if she has 'capacity' at certain times, but certainly shouldn't be undertaken without legal advice.

In each case, I'd suggest that Mum would need to be in a room with a legal professional and no other family present when signing, or coercion will be alleged. If mum ever has that level of capacity (can understand and retain information given by someone she doesn't know about what she's doing for long enough to read and sign something without prompting by family) then great. If she'd be unlikely to be able to do that then forget it.

newatc

If your sister is recognising her debt why risk the family upset that trying to remove her as executor will undoubtedly bring. If she acts illegally (not carrying out her duties correctly) then you can take action.

As eldest she may regard it as her duty/responsibility and even questioning it will undermine her pride. I am the eldest of six who all get on well but when I found my mother's will and I wasn't named as executor, I was saddened even though I could see practical reasons why.

middlesis

mum has agreed to make a new will as she understands that the current one is not fit for purpose as it stands. She does still have capacity, but hates talking about money and gets very defensive at the mere mention of anything official. Younger sis is keeping a very tight grip in the finances and has told the older sis that this problem wont go away and it needs to be sorted (cue - bury head in sand) . I think with a robust approach by me and little sis she will indeed have no option but to sort herself out as we have told her that we wont be bamboozled by her "eldest sibling" mindset. And yes, there is a 2nd executor - the ex-husband (now remarried) of older sis who refuses to speak to her or his 2 daughters due to their appalling behaviour. The one thing all 4 of agree on is that he should not be executor as he has nothing to do with the family anymore and in all honesty would be quite relieved to be out of this mess. so we,ll have to see how that one pans out.

Manxman_in_exile

middlesis wrote: »

Hi everyone, I am new to this so please bear with me. but my question is this - my older sister has been named as executor to my mothers will, however she and her 2 daughters owe my mum a large sum of money (about 30K) and they are quite clearly in financial difficulties. Although she acknowledges the debt, she refuses to discuss it and takes a rather superior attitude about being the eldest sibling. My younger sister and I feel quite worried as the three of us are equal beneficiaries along with our children, and are thinking that there may be a significant conflict of interest between her roles of beneficiary and executor. I have to say here, that Mum is still alive and kicking, but at 87 yrs old and with dementia she finds making important decisions confusing and will do or say anything for a quiet life. This is a rather short-winded version, but I hope someone could maybe point us in the right direction before it spirals out of control. Thank you all.

OP - can I suggest you edit the the title of your post from "creditor" to "debtor" as I think that is what you mean? YM99's post talked about "creditor" but I think you mean "debtor".


I have no idea if it makes a difference or not, but it may be a good idea to be clearer to get good advice.