Test of Wills.2 Executor as Executioner, Grave Digger and Stone Thrower

A Test of Wills: Executor as Executioner, Grave Digger and Stone Thrower

This account is intended to be a word to the wise that an estate battle becomes mired by all of the history that represents the function and dysfunction of a family. Because estate battles can be turned into drudging buried muck, dragging skeletons from closets, digging through dirt and throwing stones, part of the writing of this series of Test of Wills blogs is an intensely personal account of the loss of my parents, the loss of one sister by suicide and the loss of the other by her own greed and desperation. It is accurate from my perspective but may actually be, as Shakespeare once put it, "a tale told by an idiot full of sound and fury, signifying nothing." If that is the case, may one person turn around and draft a will, review a will, put his or her affairs in order as a result of reading this insanity and I will have accomplished something. A simple review of an old Will or the drafting of a new Will can change the course of history for family members after a person's death. Do your loved ones a favor, do not allow the story of your legacy to become mine. If my father had simply drafted a codicil changing the Executor, which he had intended to do, all might be different. 

The purpose of an Executor in most states is to (a) determine and take control of the assets of the estate belonging to the deceased at the time of death, to (b) pay or otherwise make provision for payment of any debts and taxes owed by the deceased at the time of death and by the estate post death, and to (c) distribute the remaining property to the beneficiaries designated by the deceased under the will, or by law if a will does not exist. In a situation where no Will exists at all, the Executor is referred to as the Administrator and all assets are distributed in accordance with the laws of Intestate Succession.

In all states, an Executor is appointed by Will. In states including New Jersey, an Executor can rarely be removed or replaced before he or she is appointed. In some states, including New Jersey, an Executor cannot be removed unless he commits some egregious acts which materially alter the fair administration of the Estate. In New Jersey, which is a "probate friendly" state, tending to favor the "probate" rather than the beneficiaries, which can (as in my scenario) be at odds, the Executor yields tremendous power. Therefore, not only does the Executor in the case of my parents' estates hold a strong weapon, but the State of New Jersey adds to his ability to shield himself.

The job of the Executor should be very straightforward. However, in my case, the Executor sees himself as the omniscient and omnipotent benefactor to a wronged sister. Things are all but uncomplicated. He is anything but non-biased, which is supposed to be the position of the Executor; he cannot see the forest for the trees because his judgment is so clouded by disdain and hostility; and he cannot understand that the time he is wasting on digging and dredging is diminishing the value of the house, currently in a state of disrepair.

My parents' wills were drafted in 1998. While my father had intended to change his will beginning in 2010, he had not done so because he simply did not want to spend significant amounts of money to make any changes. I believe that he felt that he could send an email to the Executor telling him of his intentions and all would be okay. However in this case, a penny saved is a Pound spent. Dad did not really consider that the money he saved would be spent 100-fold in trying to undo the harm that would befall his children at the hands of the Executor.

The Executor, once appointed decided to review records since 1998 in an effort to dig dirt, uncover bones, find skeletons. He believed and continues to believe that I owe money to the estate and has decided it prudent to use estate assets to rummage around in a past long since buried.This is all part of his decision to "right the wrongs" visited upon my sister by a life of being Cinderella. Setting aside that 1998 is well beyond the statute of limitations for many claims, so much happened in 14 years. Do we really want to consider all of the events of those years? Does he really think that my father did not have enough time to collect on any outstanding debts that may have existed in that time? My father was anything but frail, even at the time of his death. He was strong-willed and tenacious and would have undoubtedly taken my left hand if he felt I owed him something. But, the Executor is armed, well armed.

IN 1998, my eldest sister lived in Seattle and then in New York, bought a house, got divorced, had a second child, had battles with fathers over custody issues, needed money on and off and then tragically killed herself. My middle sister lived in various locations with her husband, without her husband, moved around, never held down a job and received money from my father by way of bills being paid because he was not comfortable handing her cash. I lived in Israel and moved back and forth. I had a third child. I built a business. I needed money on and off for things - all in the course of a family and all within what is personal to a family. My father was intensely personal and each decision that he made in regard to money came from a place within him that found lending or giving money so very difficult, it was not usually shared, except in passing.

My father was not naturally generous in life when it came to money. Rather, more accurately, he was generous at his own time, on his own terms and using his own methods.  He was thrifty with his own money, and while generally financially present in times of need, each dollar he gave or lent had a thousand strings attached. While some couples have mak-up sex, my father was into makeup money. I don't really know what happened behind closed doors between my parents; but with his children, if he had an argument and he realized that he was wrong (which was not very often an admission) he did not eat crow. Instead he would shower us with gifts. I know this would be true of my eldest sister during her life and it is certainly true of my own experiences. Seeing as he gave my sister a car the year before he died, it would seem to have been true of her, as well. In my case, my father would bring kitchen gadgets (which he knew I loved) or he would bring the kids gifts when he had done something he knew to be hurtful toward them. He never apologized, just came bearing gifts.

My father believed strongly in what he referred to as fuck you money and I don't think that there was ever a point in his life in which there was enough of that. He felt that in order to be able to get along in the sandbox with others, you needed to be financially sound. You needed to have enough money to be able to say "fuck you," if and when the time presented itself. To protect his own source of such funds, generosity for my father needed to be based in a reality he understood (only he understood) and based upon a belief that there would be some form of reciprocity.  

He lent money when he needed something and knew that once the money was loaned there would be no saying, "No." to him. If he needed something and you were indebted to him, you had to be prepared to help him. He did not lend freely but wanted some level of control in regard to where the money was going or what is was being used for. He demanded timely payments, with interest and would be quite vindictive if his way was not followed. I would guess that borrowing money from a street gang is a far less brutal experience. All three sisters had occasion to borrow money from him and all three sisters had our own individual arrangements with him in that regard. Every once in a while we would get lucky and he would decide that he did not need the money back. Usually, this was one of his weapons against saying he was sorry for something he had done. Alternatively, he would decide that it was used for the correct purpose and he deemed that a contribution to the success of his children. These moments were few and far between earlier in his life, more frequent as he got older.

My mother, on the other hand was warm, generous of time, money and spirit and forever "schtooping" money to her children when Dad was not looking. Mom gave gifts to her children and grandchildren generously and endlessly. In fact, with each of Mom's sisters she had arrangements in regard to the giving of gifts whereby each would buy gifts for their grandchildren and would get reimbursed by the other. Mom never wanted the kids to know from a lack of generosity. She wanted her children and grandchildren to know their extended family and wanted everyone to feel that gifts were given generously. She believed in holidays and special occasions. For Mom there were few times when she could not think of an excuse to give. This usually drove my father crazy.

When we went out to dinner, if my mother was present, the bill got paid by Mom and Dad. If she were absent or after she got sick, the bill either got split in half or paid for by either my family or my eldest sister's family when she was alive. My middle sister had not had a two nickels to rub together for nearly the last 20 years so quite often she was not invited to go out because paying her way became the source of great hostility for my father, who refused. So, if she were invited to something, it was my family or my eldest sister's family who paid her way.

Looking back, my father is not to be faulted for his attitude towards money. His feelings came from an upbringing tainted by an internal struggle, a war between the Socialistic views of his parents and the capitalistic views of his life as a securities trader. On the one hand, he was taught to give, on the other, he was taught to take. He was at constant war with himself.

Where I think he went wrong: My father never believed that he could count on his children to take care of him or my mother in their retirement years. He therefore never participated in any real estate plan. The idea of gifting money for the purpose of tax planning was a foreign concept for him, fueled by his fear of growing old without his fuck you money. Where my father truly failed, where he let us down, was in overestimating his mortality and not changing his will so it reflected his final wishes. 

Regardless or rather setting that aside, my father would have wanted it all to be uncomplicated and as evidenced by his disdain for lawyers' fees, he certainly would not have wanted history to be taking the course it is taking. My father would never have wanted an Executor (or his children, for that matter) digging through years of my father's and mother's personal documents. I do not think that in his wildest thoughts he would have contemplated that my cousin would satisfy his own whim using my father's estate as a sword.  

Sadly, in his digging, not only has the Executor created a rift so deep amongst family members, it will be a wonder if any potential beneficiary can climb out, not only has he made it impossible for two sisters to ever speak again, but he has neglected so much that really requires the attention of someone capable of being both competent and unbiased, including the house, which is little-by-little disintegrating; and investment accounts that were utilized by my father for reasons that are no longer viable and may now be imprudent investments. The Executor is neglecting his duties in favor of pursuing a vendetta, which is not the point of the Executor, not within his purview and certainly contrary to what my father, what my parents would have wanted. But, unfortunately, New Jersey law does not directly preclude his behavior. So, it continues...