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My sister and her husband were named co-executors of my parents estate,
which includes a home left to all four siblings (my sister, myself and
two brothers). My mother died in Jan, 2004. My sister recently
received a phone call from my father's attorney stating that the
probate process needs to be completed. For some reason I don't
understand, she seems to prefer it not be settled and the house put in
all four names. I've assumed this could be for liability reasons (she
owns more property than us), but I don't know. However, a recent
comment by my sister concerns me. In essense, she said that she could
sell the house without consulting us three brothers, and is apparently
planning to do so. When I mentioned that I thought an executor was a
temporary situation, and that we all four would need to get together on
any sale plans, she stated again that she has the right to sell it
without any of our (her brothers) input.
I thought an executor was a temporary thing? Can she sell the house
without us? How can we finalize probate? She has used money in my
mothers account for paying hers and others utility bills, vehicle and
insurance payments, and so on... treating it like her own account
without any oversite. The money is about all gone, I understand.
My sister does not inform any other members of anything, and seems to
treat the situation as if everything was left to her. She is the only
person to meet with the attorney my dad was using before he died, and
this attorney was referred from my sister's husband. No one else even
has his phone number.
As I said, we're getting close to 1 1/2 years without the house being
put in our shared names. When I've asked her why, I've gotten vague
answers.
Advise, please!
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beachshark1@yahoo.com wrote:
My sister and her husband were named co-executors of my parents
estate, which includes a home left to all four siblings (my
sister, myself and two brothers). My mother died in Jan, 2004.
My sister recently received a phone call from my father's
attorney stating that the probate process needs to be completed.
For some reason I don't understand, she seems to prefer it not
be settled and the house put in all four names.
Does your sister live in the house? If so, that may well be the
reason. If she's the executor she may be able to continue to live
there until the house is distributed. If it's distributed to all
the kids as joint tenants, she will be able to continue to live
there until someone sues her and gets a court order to sell.
However, a recent comment by my sister
concerns me. In essense, she said that she could sell the house
without consulting us three brothers, and is apparently planning
to do so.
Generally that's the executor's job. If one or more of the heirs
want to buy the house from the probate (receiving credit for their
proportionate share of the value, of course), he is certainly free
to do so.
She has used money in my mothers account for paying hers and
others utility bills, vehicle and insurance payments, and so
on... treating it like her own account without any oversite.
She will have to justify her actions to the probate court. But if
nobody shows the court the inconsistencies in her accounting, she
may get away with it. Consult a local estate lawyer.
Stu
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eachshark1@yahoo.com wrote:
My sister and her husband were named co-executors of my parents
estate,
which includes a home left to all four siblings (my sister, myself
and
two brothers).
That's not how it usually works. Did the will actually say the house
itself was to be retained and bequeathed to the 4 siblings, or did it
just say that the 4 of you share equally in the residual estate? The
latter is more common these days unless your family home is part of a
working farm or has been in the family for generations and the dying
ancestor wants it to stay that way. In a modern middle class American
family sually all the parents care about is that their children receive
money, not specific land, from their inheritance.
My mother died in Jan, 2004. My sister recently
received a phone call from my father's attorney stating that the
probate process needs to be completed.
Based on what you say below, how do you know she got such a call? You
said she's not telling you anything. And you say you don't know who
the atty is.
Anyway, closing out probate sounds like a good idea. That's the point
of the whole process, completing the distribution of the estate assets
to the heirs in one way or another.
For some reason I don't
understand, she seems to prefer it not be settled
That's one possible thing but the court, not she, has final say over
that. And probate does have to be completed, eventually, sometime.
and the house put in all four names.
And that's a totally different possible thing which may or may not be
part of her plan for closing out probate.
I detect a possible misunderstanding. In order for probate to be
settled, all the assets of the decedent's estate have to be collected
by the executor, and then disposed of in accordance with the will.
Perhaps the executor is doing what your mother wanted by selling the
house so that the money from the sale can be split among the 4 of you.
In any event, even if your mother's will did say the house was to be
put into a tenancy in common owned by the 4 sibs, after probate closes
any one of the new co-owners who wanted "out" could file a complaint to
partition the property and force a sale by that means, at which time
the cash value of the house would be split among the 4 of you. 6 of
1, 1/2 dozen of the other.
Do you want to keep the house in your (not your siblings') nuclear
family? Then offer to buy it from the estate, or to have it be
appraised and taken out of your share of the overall inheritance.
I've assumed this could be for liability reasons (she
owns more property than us), but I don't know.
It doesn't matter why she doesn't want to keep it, since the law gives
her as executor the sole discretion in whether to keep it or sell it
unless the will specifically provides otherwise.
However, a recent
comment by my sister concerns me. In essense, she said that she
could
sell the house without consulting us three brothers, and is
apparently
planning to do so.
If she is the executor, and IF selling the house does not violate any
of the provisions the testator (your mom) put in her will, then yes she
can do so.
When I mentioned that I thought an executor was a
temporary situation, and that we all four would need to get together
on
any sale plans, she stated again that she has the right to sell it
without any of our (her brothers) input.
Yes, executor is a temporary position; it lasts until the probate is
completed. And collecting, selling, and converting into cash the
various assets of the testator's estate are all properly part of her
duties in wrapping up the estate to complete probate, UNLESS the will
specifically prevents her from selling the house.
I thought an executor was a temporary thing? Can she sell the house
without us?
If the will so permits, yes.
How can we finalize probate?
By letting her do her job properly.
She has used money in my
mothers account for paying hers and others utility bills, vehicle and
insurance payments, and so on... treating it like her own account
without any oversite.
That is a different kettle of fish. What proof do you have? I note
that she does have an atty representing the estate; so he is ethically
bound to see that she follows the provisions of the will and reports a
proper accounting to the court. The kind of self-dealing you suspect
is much more likely in cases where a relative acts as executor without
an atty being involved since, as you note, there would be no oversight.
But if you are concerned the atty may not be adequately supervising
the process, you would be well advised to take your specific facts, and
any supporting documentation (including a copy of the will) to a local
probate atty other than the one currently representing the estate, and
lay it all out for him to see if he feels your interests are at risk
and if so, if there is anything he can do to protect your interests.
The money is about all gone, I understand.
How much of it was there to begin with? What were the estate's
expenses and your mother's debts? As noted, all of this needs to be
accounted for publicly if the will is being probated. But the house is
still there, right? It sounds like that is the bulk of the value of
the estate.
My sister does not inform any other members of anything,
That's not unusual or improper, except for whatever reports she may be
required to file and copy to you by your state's law. You don't say
where you are, BTW.
Often, all that is required to be reported to the heirs is a final
accounting when all is completed. The longer it takes her to sell the
house, the longer it will be until probate is completed, IF selling the
house is part of what's necessary to close out probate.
and seems to treat the situation as if everything was left to her.
That's not the same thing. What solid evidence do you have other than
her lack of communicativeness that she is taking the estate's money and
using it for her own benefit in breach of her fiduciary duty to the
other heirs?
She is the only
person to meet with the attorney my dad was using before he died, and
this attorney was referred from my sister's husband. No one else
even
has his phone number.
For heaven's sake, if the will has been probated, the attorney's name,
address and phone will appear on the court's file. Call your county's
office that handles probate of wills, and find out who he is.
As I said, we're getting close to 1 1/2 years without the house being
put in our shared names. When I've asked her why, I've gotten vague
answers.
Maybe you've gotten straight answers (that she intends to sell it and
distribute the cash) but don't like the answers you're getting.
Advise, please!
You'll have to ask a local probate atty for that, after showing him all
the facts, if the above discussion doesn't clear up your confusion.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 2
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My sister and her husband were named co-executors of my parents
estate, which includes a home left to all four siblings (my
sister, myself and two brothers). My mother died in Jan, 2004.
My sister recently received a phone call from my father's
attorney stating that the probate process needs to be completed.
For some reason I don't understand, she seems to prefer it not
be settled and the house put in all four names.
Stu: "Does your sister live in the house?"
No, she lives a block away. A brother lives in the house, paying the
taxes, insurance and utilities, but no rent.
However, a recent comment by my sister
concerns me. In essense, she said that she could sell the house
without consulting us three brothers, and is apparently planning
to do so.
Stu: "Generally that's the executor's job. If one or more of the heirs
want to buy the house from the probate (receiving credit for their
proportionate share of the value, of course), he is certainly free to
do so."
I didn't know that when I posted my questions, but now I understand
that she can sell the house so long as the will doesn't prohibit it.
I've never seen the will, so I don't know what it says, actually.
She has used money in my mothers account for paying hers and
others utility bills, vehicle and insurance payments, and so
on... treating it like her own account without any oversite.
Stu: "She will have to justify her actions to the probate court. But
if nobody shows the court the inconsistencies in her accounting, she
may get away with it. Consult a local estate lawyer."
Which is what I suspect... that she'll get away with it. I'm not
really wanting to cause her problems with that, since it was not a
great deal of money left in the estate. However, with the length of
time this simple estate has stayed unresolved, and with her comments
about having the right to sell it without involving us brothers, well,
I'm beginning to become concerned. Of course, your answer explains
that indeed she can sell it, which is not what I assumed.
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My sister and her husband were named co-executors of my parents
estate,
which includes a home left to all four siblings (my sister, myself
and
two brothers).
MIKE: "That's not how it usually works. Did the will actually say the
house itself was to be retained and bequeathed to the 4 siblings, or
did it just say that the 4 of you share equally in the residual estate?
The latter is more common these days unless your family home is part
of a working farm or has been in the family for generations and the
dying ancestor wants it to stay that way. In a modern middle class
American family sually all the parents care about is that their
children receive money, not specific land, from their inheritance."
I have not read the will, so I'm not sure what my father stipulated.
He died of cancer, and he created a living will and supposedly arranged
for everything for my mother, who died a few months after him, with the
house being left to us four kids. I guess I need to see if a copy of
the will can be provided for me to read.
My mother died in Jan, 2004. My sister recently
received a phone call from my father's attorney stating that the
probate process needs to be completed.
MIKE: "Based on what you say below, how do you know she got such a
call? You said she's not telling you anything. And you say you
don't know who the atty is."
Well, she's certainly not being very forthcoming, but she and I get
along well and we do talk. I first learned about the attorney's phone
call from my brother, who learned it from my sister or brother-in-law.
I mentioned it to my sister, who confirmed that the attorney had called
and said the estate could not stay in limbo forever. This was about
three months ago or so (and about 16 months since mother passed.) As
for the name of the attorney, she had mentioned it before but I didn't
make record of it, and I'm in the state now where I don't really want
to make waves, unless, as I'm worried about, things are not being
handled properly or fairly.
MIKE: "Anyway, closing out probate sounds like a good idea. That's
the point of the whole process, completing the distribution of the
estate assets
to the heirs in one way or another."
For some reason I don't
understand, she seems to prefer it not be settled
MIKE: "That's one possible thing but the court, not she, has final say
over that. And probate does have to be completed, eventually,
sometime."
and the house put in all four names.
MIKE: "And that's a totally different possible thing which may or may
not be part of her plan for closing out probate. I detect a possible
misunderstanding. In order for probate to be settled, all the assets
of the decedent's estate have to be collected by the executor, and then
disposed of in accordance with the will. Perhaps the executor is doing
what your mother wanted by selling the house so that the money from the
sale can be split among the 4 of you. In any event, even if your
mother's will did say the house was to be put into a tenancy in common
owned by the 4 sibs, after probate closes any one of the new co-owners
who wanted "out" could file a complaint to partition the property and
force a sale by that means, at which time the cash value of the house
would be split among the 4 of you. 6 of
1, 1/2 dozen of the other. Do you want to keep the house in your (not
your siblings') nuclear family? Then offer to buy it from the estate,
or to have it be appraised and taken out of your share of the overall
inheritance."
I do need to read the will, I guess, since all I know is that my father
prepared everything before his death (about four months before my
mother's), and the house was left to us kids. As to whether it was
expressely stated that we get the house, and not proceeds from it,
well, I just don't know yet. As for me, I don't really care about
having the house for just myself (by buying the others out). I have a
brother who is living there, and who would like to own it, but he does
not have good enough credit to buy it. I do think it could be fairly
good investment property, since it's on a primary street and zoned
commercial in a growing area.
I've assumed this could be for liability reasons (she
owns more property than us), but I don't know.
MIKE: "It doesn't matter why she doesn't want to keep it, since the law
gives her as executor the sole discretion in whether to keep it or sell
it unless the will specifically provides otherwise."
This I did not know. I was alarmed when she said she could sell it on
her own, without us, but your helpful answer confirms that indeed she
can.
However, a recent
comment by my sister concerns me. In essense, she said that she
could
sell the house without consulting us three brothers, and is
apparently
planning to do so.
MIKE: "If she is the executor, and IF selling the house does not
violate any of the provisions the testator (your mom) put in her will,
then yes she can do so."
When I mentioned that I thought an executor was a
temporary situation, and that we all four would need to get together
on
any sale plans, she stated again that she has the right to sell it
without any of our (her brothers) input.
MIKE: "Yes, executor is a temporary position; it lasts until the
probate is completed. And collecting, selling, and converting into
cash the various assets of the testator's estate are all properly part
of her
duties in wrapping up the estate to complete probate, UNLESS the will
specifically prevents her from selling the house."
How can we finalize probate?
MIKE: "By letting her do her job properly."
Which is fine by me. Up until recently, when I posted these questions,
I have not gotten involved at all, trusting that she would try to do
things rightly. My concerns lately were whether she actually is doing
her job properly. The fact that after 16 months the estate is not
probated, and the comment she had about her selling the house on her
own (which I thought she could not do). Still, I've not shared these
concerns with her, and we talk occassionally and get along fine.
Frankly, she's influenced by her husband, who I deem to be a bit of a
"snake"... who I learned to not trust many years ago, so I do keep a
bit of a wary eye on the situation.
She has used money in my
mothers account for paying hers and others utility bills, vehicle and
insurance payments, and so on... treating it like her own account
without any oversite.
MIKE: "That is a different kettle of fish. What proof do you have?
I note that she does have an atty representing the estate; so he is
ethically bound to see that she follows the provisions of the will and
reports a proper accounting to the court. The kind of self-dealing
you suspect is much more likely in cases where a relative acts as
executor without
an atty being involved since, as you note, there would be no oversight.
But if you are concerned the atty may not be adequately supervising
the process, you would be well advised to take your specific facts, and
any supporting documentation (including a copy of the will) to a local
probate atty other than the one currently representing the estate, and
lay it all out for him to see if he feels your interests are at risk
and if so, if there is anything he can do to protect your interests."
Than
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beachshark1@yahoo.com wrote <lots snipped>:
It wouldn't be necessary to sell the house, I don't think, since my
brothers and I would just as soon hang on to it. My oldest brother
expressed the view that any money would be spent relatively quickly,
but that the house would be a good investment long-term, and my other
brother and myself tend to agree with that.
I'm afraid I wasn't clear enough on this point in my first post. This
is not a case of "majority rule". Any one of the several co-owners
can initiate a partition of the property if they want "out". Whether
or not your desire to keep it as investment property vs. her desire to
sell is not the issue. And this is not just because she's executor of
the Will; _any_ co-owner can do this. OTOH, if the other 3 of you do
want to keep it, maybe it would be within your financial means to buy
out just the other sister's share? That would only require a cash
outlay (or 2nd mortgage) of about 1/12 the house's value from each of
the 3 remaining owners (1/3 x 1/4). You should definitely have a
lawyer representing your side to negotiate this with her lawyer if
that's what you want to try to do.
Even though you've confirmed she can sell the house on
her own, I still would like to have his contact information in case I
feel a need to discuss something or get better informed. I should at
least read the will, if he has it.
No, don't do that yet; the main point I was trying to make is, the
_court_ will have a copy of the Will, as a publicly available document
in their file, if the Will has been submitted to probate. Call them
and find out if it has, and then ask to be shown the file and/or make a
copy for yourself from the official court file. Anyone in the public
can do this, IF it's been probated. IMO if you can do that because it
was never submitted to probate, then and only then do you have to go to
someone connected with your sister's side of the family and/or her atty
to ask to see their copy of the Will.
Thank you very much for your advise! I'm less concerned now, just
knowing more about these matters. I think I will obtain the
attorney's
contact information through the court as you suggested, and read the
will. I still would feel better seeing the estate finish probate,
and
knowing that my name is attached to the title. I still don't know
why
there doesn't appear to be an end in sight that does this. And I
don't
"get" the answers I receive from her when I've inquired (they're
vague). It's almost like now that I've asked questions, she's not
going to get the home in all four names, but instead sell it on her
own. I just don't get why. And, is there a tie-in to the spent
checking account? How much was in there anyway, and how much did she
spend on herself?
These are still questions I have,
Which is why you should consult a local probate lawyer soon who can
help guide you through this and represent your interests in actuality,
something you will not be able to get from mere internet discussion.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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