Can I file a claim against an estate 6 months after it has closed for unfair distribution of assets?

Related Ads


My mother has died about 1 year ago. My brother and I were left as the only heirs as our Father passed away years ago. My brother was left as the executor and was supposed to distribute a certain portion of the money over to me, but he is not honoring it. It’s been 6 months since the estate has closed, can I still file a claim against the estate?



You are certainly within your rights to pursue legal action if you have unfairly been denied assets left to you from your mother’s estate. Unfortunately, if the estate is closed, the party that you will need to bring an action against is not the estate, but the executor. Based on your question, it seems there are a myriad of issues which need to be addressed.

First, when someone is appointed executor of an estate, the first thing the executor must do is notify all creditors of the status of the estate. As a beneficiary, you have four months from this time to file a claim. Even if you do not file a claim, if your mother’s will specifies you as a beneficiary, your brother, in his capacity as executor of your mother’s estate, has a legal fiduciary duty to act on your behalf. He must  notify you of your inheritance immediately. In the event he does not do so, he has breached his fiduciary responsibility and exposed himself to liability.

The next thing the executor of an estate does is pay off any debts and monies owed. These debts range from everything from property taxes to outstanding loans to the fees for funeral services. This is when your brother, as executor, would be expected to give you any money left to you in your mother’s will. In return, you would tender him a receipt verifying that you received any and all monies due to you under the provisions of your mother’s will. If you did tender a receipt but feel you were under duress or that there were extenuating circumstances, those would absolutely be issues you would need to discuss with an attorney.

Finally, when all beneficiaries are paid and all assets allocated, the last step to closing your mother’s estate is the filing of a document called an Ex Parte Petition for Final Discharge and Order. This is the document your brother must provide to the court requesting that your mother’s estate be considered closed. In order for the court to issue an order closing the estate, it must see proof of payment to beneficiaries in the form of receipts.

If you were not paid and never provided a receipt to your brother, in his capacity as executor, the court can not issue an Order for Final Discharge. In that case, your mother’s estate is not closed. If the Order was issued and you are alleging fiduciary misconduct, than your claim is not against the estate but against your brother, as executor. In either instance you are looking at potential probate litigation. This litigation is generally complex and highly specialized. I strongly urge you to retain counsel that specializes in the field of probate litigation to represent you in this instance.