Is it legal for an executor of an estate to do this?

Question

My uncle is the executor of my grandparents estate and the Will states the the assest are to be devided equally between my father and him (a strait 50/50). My uncle has refused to communicate with my dad and has sent letters to the realestate agent and title company demanding that they write one check for the propertiy being sold to him; moreover, he tells them that they cannot give him (my father) the name of the estate attorny(who drafted the Will), nor the title company or any information whatsoever regarding the sale of this property, or the other property that is listed.
What he is planning to do is keep a 100% of the proceeds so he can buy a house cash as he has been living with my grandparents, and feels that although my father has a mortgage he should not. Then when and if the cabin sells ( the second property) split that with my dad to even things up, whenever that happens.

This is in Minnesota

Answer 1

In what state is probate occurring?

EDITED BASED ON ADDITIONAL INFORMATION:

By the way, the entire probate code can be found here:
http://www.revisor.leg.state.mn.us/revisor/pages/statute/statute_chapter_toc.php?chapter=524
Under Minnesota Probate code(s) you have the right to demand the executor submit a Performance Bond as per the following:

524.3-605 DEMAND FOR BOND BY INTERESTED PERSON.
Any person apparently having an interest in the estate worth in excess of $1,000, or any creditor having a claim in excess of $1,000, may make a written demand that a personal representative give bond.

The demand must be filed with the court and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, the court may require or excuse the requirement of a bond. After having received notice and until the filing of the bond or until the requirement of bond is excused, the personal representative shall refrain from exercising any powers of office except as necessary to preserve the estate.

Failure of the personal representative to meet a requirement of bond by giving suitable bond within 30 days after receipt of notice is cause for removal and appointment of a successor personal representative. An interested person who initially waived bond may demand bond under this section.
History: 1974 c 442 art 3 s 524.3-605; 1975 c 347 s 49; 1986 c 444


You also have recourse under the following:
524.3-713 SALE, ENCUMBRANCE OR TRANSACTION INVOLVING CONFLICT OF INTEREST; VOIDABLE; EXCEPTIONS.
Any sale or encumbrance to the personal representative, the personal representative's spouse, agent or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless

(1) the will or a contract entered into by the decedent expressly authorized the transaction; or

(2) the transaction is approved by the court after notice to interested persons.
History: 1974 c 442 art 3 s 524.3-713; 1986 c 444

And FINALLY, it seems that the representative may be in violation of the following:

524.3-715 TRANSACTIONS AUTHORIZED FOR PERSONAL REPRESENTATIVES;
EXCEPTIONS.
Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the priorities stated in section 524.3-902, a personal representative, acting reasonably for the benefit of the interested persons, may properly:

(1) retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;

(2) receive assets from fiduciaries, or other sources;

(3) perform, compromise or refuse performance of the decedent's contracts that continue as obligations of the estate, as the personal representative may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may:
(i) execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land; or
(ii) deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement;

(4) satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed
under the circumstances;

(5) if funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable
secured loan arrangements or other prudent investments which would be reasonable for use by trustees generally;

(6) acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change
the character of, or abandon an estate asset;

(7) make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing or erect new party walls or buildings;

(8) subdivide, develop or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; or adjust differences in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration;

(9) enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration;

(10) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(11) abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate;

(12) vote stocks or other securities in person or by general or limited proxy;

(13) pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;

(14) hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in
connection with the security so held;
(15) insure the assets of the estate against damage, loss and liability and the personal representative against liability as to third persons;

(16) borrow money with or without security to be repaid from the estate assets or otherwise; and advance money for the protection of the estate;

(17) effect a fair and reasonable compromise with any debtor or obligor, or extend, renew or in any manner modify the terms of any obligation owing to the estate. The personal representative on holding a mortgage, pledge or other lien upon property of another person may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;

(18) pay in compliance with section 524.3-805, but without the presentation of a claim, the reasonable and necessary last illness expenses of the decedent (except as provided in section 524.3-806 (a)), reasonable funeral expenses, debts and taxes with preference under federal or state law, and other taxes, assessments, compensation of the personal representative and the personal representative's attorney, and all other costs and expenses of administration although the same may be otherwise barred under section 524.3-803;

(19) sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;

(20) allocate items of income or expense to either estate income or principal, as permitted or provided by law;

(21) employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act without independent investigation upon their
recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary;

(22) prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of duties;

(23) sell, mortgage, or lease any real or personal property of the estate or any interest therein, including the homestead, exempt or otherwise, for cash, credit, or for part cash and part credit, with or without security for unpaid balances, and without the consent of any devisee or heir unless the property has been specifically devised to a devisee or heir by decedent's will, except that the homestead of a decedent when the spouse takes any interest therein shall not be sold, mortgaged or leased unless the written consent of the spouse has been obtained;

(24) continue any unincorporated business or venture in which the decedent was engaged at the time of death (i) in the same business form for a period of not more than four months from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business including good will, (ii) in the same business form for any additional period of time that may be approved by order of the court in a formal
proceeding to which the persons interested in the estate are parties; or (iii) throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate;

(25) incorporate any business or venture in which the decedent was engaged at the time of death;

(26) provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate;

(27) satisfy and settle claims and distribute the estate as provided in this chapter;

(28) foreclose a mortgage, lien, or pledge or collect the debts secured thereby, or complete any such proceeding commenced by the decedent;

(29) exercise all powers granted to guardians and conservators by sections 524.5-101 to 524.5-502.
History: 1974 c 442 art 3 s 524.3-715; 1975 c 347 s 55; 1986 c 444; 2004 c 146 art 3 s 42; 2006 c 221 s 21

That is all I can give you for now. I would need more exact information. I would suggest however that you contact the real Estate agent's broker (or have your attorney do so) and inform them that the sale of the home MUST comply with the above statute otherwise, they are notified that any further proceeding without establishment of an escrow in favor of all parties with standing to inherit under the will, will be in clear violation of the Probate code and will serve to include the Broker in the eventual lawsuit.

Answer 2

Your uncle can legally do all the things he has done so far, but he is obligated to divide the assets in accordance with the will. He cannot pay cash for a house and then pay your father later when (IF) the other piece of property sells. Once the estate has been settled and all claims have been resolved against the estate, the assets are to be distributed. So if your uncle does in fact take all the money and buy the house, your father should sue him for the money owed AND for damages -- and in that case I would advise you to find an attorney who will gouge your uncle for every last cent.

Answer 3

Yes, it's legal for an executor to require that all proceeds from estate sales be sent directly to him. That's part of the role of executor.

It is not legal for him to keep the money and refuse to split it according to the terms of the will. And if he does that, he can be sued in court for conversion and breach of fiduciary duty.

If there is evidence that he intends to take all the money, your dad can seek a preliminary injunction compelling the proceeds of the sale be put in trust and then divided, or he can seek to have your uncle removed as executor. The former is more likely than the latter.

Answer 4

You and your father should contest the will in probate court. The executor of a will is usually entitled to a small fee but he can't just rewrite the will. I assume that you have a copy of the will and it indeed does say that the assets should be equally split between your father and uncle. Contact the real estate and title company and let them know in writing that you will contest any settlement without your father being included. If you have proof, a copy of the will, no title company in their right mind will go forward untlil the situation is legally resolved. Good luck.

Answer 5

It's awful when things like this divide a family, and what's worse is that your grandparents tried their best to avoid this situation by executing a will with simple terms. I'm not a lawyer yet so I can't explicitly answer your question, but you/your father need to contact an attorney about this as soon as possible before things go any further.

Answer 6

Smells to me. Your dad should get his own attorney. The executor owes fiduciary duties to the beneficaries and must follow the will to the letter.

Answer 7

Your father needs to contact an attorney to fight for what is rightfully his.It's sad that money is such an issue when a family member dies.I've seen families torn apart by this.Good luck to you and your dad.