My father’s estate was awarded $50K in a class-action lawsuit. My brother, as executor, kept the money. What can we do?

My pop passed away in 2000. His estate was awarded $50,000 in a class-action lawsuit over his cause of death. My brother was the executor of his estate. My brother retains the money awarded to my father to this day. My mom is still alive. In New York state, shouldn’t the money be transferred over to my mom, since she was the sole heir in his will?

Living in SoHo

Don’t miss: I have early Alzheimer’s and my husband has stage 4 kidney disease. We just inherited $50K. How can this help us?

South of Houston, you have a problem.

An attorney could outline your options, but because this happened 25 years ago, your options are extremely constrained due to the statute of limitations. Assuming your mother is aware of this situation and feels as you do, she could simply reduce your brother’s inheritance. That would save thousands of dollars in lawyer’s fees, save you time and stress and, ultimately, save your mother additional heartache.

How much should she reduce his inheritance by? That is the $64,000 question, as they say. Inflation alone would mean that $50,000 would be worth more than $93,000 in today’s money. And if it had been invested, assuming a very conservative 1.5% interest rate, that would bring an extra $21,000 or more to the table. So in order to pay the full penalty for your brother holding onto this money for 25 years, she could deduct $115,000 from his inheritance.

An executor has a fiduciary responsibility to honestly deal with all aspects of the deceased’s estate, including paying creditors and taxes and distributing assets to heirs. They absolutely must avoid self-dealing and acting in their own interest. The legal heir in this case would be your mother, unless your father had a will stating otherwise. Because she is still alive, there are many things she can do to right this wrong, but suing her son for breach of fiduciary duty is probably not among them.

How much should she reduce his inheritance by? That is the $64,000 question.

In New York, the statute of limitations to take legal action depends on the alleged crime. There is no statute of limitations for a Class A felony, which includes murder, rape, treason and first-degree arson. Legal malpractice is three years, fraud is six years, theft is two to five years, and medical malpractice is two years and six months from the date of the alleged offense or from the end of treatment taken by the medical practitioner. You can read more here.

Ordinarily, you would be able to sue. “Yes, you can sue the executor of an estate,” says Matthew A. Bourque, an attorney practicing in Dallas and Houston. “Interested parties have the right to sue if the executor has breached one or more fiduciary duties to the estate and its beneficiaries. However, there are some limitations to this. Before you sue the executor of an estate, you must consider whether you have standing to do so.”

You can only sue if you are an estate beneficiary, he says. “It is important to distinguish lawsuits against executors from similar types of claims. Lawsuits against executors typically allege that the executor breached a fiduciary duty. This is different from a will contest, which challenges the validity of the will itself. Lawsuits against executors are also distinct from removal actions, in which a beneficiary asks the probate court to force an executor to step down.”

Looking ahead, I would obviously advise your mother against naming your brother as executor of her estate, given his track record. She could — and probably should — appoint an independent third party to avert any further conflict. Meanwhile, someone who does not have any children, or does not have kids they trust, can consult with the National Academy of Elder Law Attorneys and the National Association of Estate Planners & Councils.

No amount of money will likely ever be able to compensate your mother for that loss 25 years ago.

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