30 Jun My dad died and my siblings took everything. What can I do?

Q. My father died in February 2021 and my sister did not notify me for 10 weeks. In that time, she made herself the executor, sold my dad’s home and took everything, dividing it up between my brother and her. She gave me nothing and my father never would have done this to me. She is so greedy. Do I have any legal rights?
— A rightful heir

A. Maybe.

First, we’re sorry to hear about the loss of your father and the family fight you’re heading into.

You said your sister “made herself” the executor.

It is important to note that no one can make themselves the executor of an estate, said Tom Szieber, a trusts and estates attorney at Herold Law in Warren.

“For an individual to become an executor, a decedent must have expressed in her will that the individual be appointed as executor in her will, and the surrogate must then admit the will to probate and issue letters testamentary to that individual,” he said.

If an individual is an executor, it likely means two things, Szieber said.

One, that your dad had a will, and two, that your sister, who was the person who was issued letters testamentary by the surrogate, was the person highest in order of priority — as expressed by your father in the will — who was willing and able to serve.

If there was no will, then your sister is not an “executor,” but is an “administrator,” Szieber said.

“During the application process with the Surrogate’s Court to become an administrator, she would have needed `renunciations’ from all individuals who have a greater or equal right to serve — including all siblings — whereby those individuals renounce their own right to serve,” he said. “Without such renunciations, the court would not likely have appointed the sister.”

You didn’t mention signing a renunciation, and because you call your sister the “executor,” we’re going to assume there was a will.

Prior to her appointment as executor, your sister would not have been obligated to inform you or anyone of the death, Szieber said. But once the will was probated and your sister was appointed executor, she would be required by New Jersey law to provide all beneficiaries of the will and all next-of-kin with a “notice of probate” within 60 days of probate of the will.

This notice should provide a copy of the will, which you would have the right to examine, or offer a copy upon request, he said.

As to the distribution of the estate, you didn’t say if you were specifically disinherited in the will, assuming one existed. If you were, and if the will was valid, then you would probably have little recourse, Szieber said

However, he said, the executor has a duty to carry out the decedent’s wishes as expressed in the will, and to act in the best interests of the estate and its rightful beneficiaries.

“If the sale of the home and the division of assets was in conflict with the will’s provisions, then she is in breach of her duties,” he said.

If you are a New Jersey resident and you believe the will is invalid because it was a product of fraud or undue influence, or if you believe your father lacked capacity to execute it, you have four months from the date of probate — or six months if you live outside of New Jersey — to petition the court to set aside the will, he said.

You would, though, carry the burden to prove such an allegation by “clear and convincing evidence,” which is a higher standard than the “preponderance of the evidence” standard used in many civil matters, Szieber said.

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This story was originally published on June 30, 2021.

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