What Are My Rights If My Parents Died and My Brother Is the Executor of the Will?

By Cindy DeRuyter, J.D.

What Are My Rights If My Parents Died and My Brother Is the Executor of the Will?

By Cindy DeRuyter, J.D.

As a child of the deceased person, you have certain rights—regardless of whether your parents' wills named you, a sibling, or someone else as the personal representative.

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The passing of one or both of your parents can be extremely difficult. Along with the emotional difficulty of losing a loved one, there are often administrative tasks associated with settling the deceased person's estate that the executor, or personal representative, must handle.

Your Rights When Probate Is Necessary

Probate is a court proceeding designed to "prove" the will and wind down a deceased person's estate. Each state has enacted separate probate laws, so specific steps in the process may differ depending on where your parents lived or owned property at the time of their deaths.

An important step in the probate process is appointing the personal representative. If your parent's will named your sibling as personal representative and your sibling is willing to serve, the judge will likely appoint them unless there is a compelling reason not to do so.

Probate is a public proceeding. Even if you were not named in your parents' will(s), you have the right to read the will, any codicils (amendments) to it, and court filings. You also have the right to notifications about upcoming court hearings. If your parents' will designates you as a beneficiary who will inherit from the estate, you are also entitled to an inventory and accounting showing additions to and distributions from your parent's estate during probate administration.

Exemptions from Probate

In some states, probate is not required for certain small estates, even if the deceased person left a valid will. In other states, probate is required if there was a will, regardless of the size of the estate.

If your parents' state allows for collection of personal property by affidavit for small estates, your sibling may not need to be appointed by the court. Instead, they might be able to sign an affidavit under oath declaring that they are entitled to take receipt of assets on behalf of the estate.

The Fiduciary's Responsibilities

The personal representative of a deceased person's estate is a fiduciary, meaning they owe a legal duty to the estate and its beneficiaries. The personal representative must carry out those duties in a responsible manner, making decisions that are in the best interest of the estate as a whole rather than in their own best interest.

Fiduciary duties of a personal representative include:

  • Representing the estate in court proceedings
  • Inventorying assets
  • Safeguarding assets
  • Notifying creditors, heirs, and interested parties
  • Paying valid debts and other claims
  • Handling tax filings and obligations
  • Distributing remaining assets as provided in the will
  • Providing a final accounting to heirs and interested parties

Estate or Trust Contests

If you were not named as an heir in your deceased parents' wills or trusts or if you don't believe your sibling is managing estate administration appropriately, you have the right to contest the administration in court.

Losing a parent or another loved one can be difficult emotionally. Unfortunately, it can also lead to strife between the deceased person's children and other family members. Even if you were not named as the personal representative in your deceased parent's will, you have a right to information about estate administration.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.