Q: What is the usual recourse if a executor doesn't follow the will? A bank account was supposed to be divided equally between X and Y but X got twice as much.

A: Probate proceedings are judicial so there is a judge, or in the case of Lake County a Magistrate) that oversees the process. The court appoints the personal representative and has jurisdiction over the matter. There are two general types of estate administrations: supervised and unsupervised.

The court is involved in every step of a supervised administration. Essentially, before the personal representative can take any action, he or she needs an order from the court. If the personal representative wants to sell the house or make a partial distribution, they have to seek an order of court.

Unsupervised administration involves the court far less than a supervised administration. Essentially the court appoints the personal representative and he or she administers the estate. When the estate has been fully administered, the personal representative files a final accounting with the court and the parties have ninety days to object. If no one objects, the accounting is approved. If someone files objections, the court sets it for hearing and everyone is afforded the opportunity to be heard.

In your case, I would start by determining what type of probate administration it is. If it is supervised and the personal representative made distributions, you should have received notice of the request and had an opportunity to appear. If no request was made and a distribution was made without court approval, the personal representative may have messed up and that should be brought to the court's attention.

If the administration is unsupervised, the court likely has no knowledge of what is going on in the administration and it would be up to one of the heirs to bring it to the court's attention. Personally I would start with a phone call to the attorney for the estate to discuss your concerns. The attorney may be unaware of the situation or may be able to clarify it for you.  

If that doesn't resolve the issue, you may need to involve the court. I would suggest engaging an attorney to assist you. However, if you don't want to hire a lawyer, I have seen a number of occasions where a letter to the judge starts things rolling. Usually, the court file stamps the letter and circulates it to all of the parties and sets a status hearing to get everyone involved into court to resolve the issue. On the other hand, the court may refuse the letter as an Ex Parte Communication but that might still might get the ball rolling.

If a personal representative isn't complying with the testamentary requirements of a will, it's a big deal. That sort of violation, I would argue, justifies the removal of a personal representative.  

Before you go busting too many chops, make sure that you understand what is happening and why. It may simply be a miscommunication or misunderstanding. If not, it's probably time to get the judge involved.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

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