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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Estate Law
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Experience:  19+ Years of Legal Practice in Estate Law.
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The will says "residuary estate" shall be divided among children.

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The will says "residuary estate" shall be divided among children. Does this include the house? My sister who is slightly nuts is insisting mom gave it to her. Mom told me that we would get our share from the sister. She would divide the cost of the house among us other 3. I do not think there is a mortgage.
Does the will cover the house divide. My husband says just to get on my sisters good side. I mentioned she is acting very greedy.

What do I do?
Submitted: 1 year ago.
Category: Estate Law
Expert:  AlexiaEsq. replied 1 year ago.
Hi, thanks for your inquiry! I have been practicing Estate law for 17+ years and have specific experience with issues like yours. That being said...

The will says "residuary estate" shall be divided among children. Does this include the house? To the extent that: The house is owned by the Deceased (your Mom) at the time of her death AND there is no document otherwise transferring it to another, AND, if the Will does not specifically give that property to someone else, it will be part of that "residuary" estate and be directed to be divided as per the terms of the Will.


My sister who is slightly nuts is insisting mom gave it to her. Without a deed where it was deeded to her, her claim means nothing.

 

Mom told me that we would get our share from the sister. If the sister owned it, Mom can't typically direct that. But if the sister in fact didn't own it, i.e. Mom didn't give it to her (which requires a re-deed OR a bequest in the Will).

 

She would divide the cost of the house among us other 3. I do not think there is a mortgage.


Does the will cover the house divide. The Will covers EVERYTHING that is passes through it. So, unless there is a reason you didn't mention, yes, the Will would typically cover a house or any other asset like that.

 

My husband says just to get on my sisters good side. I mentioned she is acting very greedy. I would imagine that if your sister is willing to lie about who owns the house, she is certainly not going to share it as she should because you behave nicely to her. Sad, I know.

What do I do? I'd let the executor know that IF he doesn't ensure that the WILL is complied with, and that any property legally and 100% owned by the Mom can not then be owned by the sister - as such, he must pass it as per the Will. If he does not, you will be forced to have the probate court have him removed and held personally liable for any losses suffered by the Will beneficiaries due to his unwillingness or inability to properly handle his very LEGAL duties that arose when he accepted the responsibility of the the position of Executor, answerable to the probate court.

 

With regard to stolen jewelry, if you have sufficient evidence to back that up, the Executor has a duty to sue her for the jewelry return or value. Moreover, if he left that jewelry unprotected after your Mom's death when he was liable to protect all estate assets, he can potentially be held liable if he was negligent in allowing it to be stolen. If he refuses to do so, it may be that he and she are sharing in the stolen booty...... or not, but something to consider, given his apparently refusal to take action against the theiving sister. He may be interested to know that he could be subjecting himself to criminal prosecution if his actions or inactions are not merely negligent but intentional, in assistance of the sisters.


Optional Information:
State (if USA): Alabama
What have you tried so far?: I told the executor, my brother, how she stole the jewelry. He acts like he will be doing nothing

 


I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



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Customer: replied 1 year ago.

Very organized answer. The executor is my brother. The home value belongs to us four children is what you are saying and if I do not get my share I can lean on my brother


I already got an assessment of about 130000. Can my sister buy it from us for 1/4 to each of us three? She is already selling her house to move.


 


The probate court is where I go if brother does not agree with me? I know nothing about probate court.


 

Expert:  AlexiaEsq. replied 1 year ago.
Thank you for your follow up:

Very organized answer. Thank you.

 

The executor is my brother. Yes. The home value belongs to us four children is what you are saying Not yet, it must be probated and if that is what the Will provides for, and that house has not been legally given the sister, then i twill belong to you all.

 

and if I do not get my share I can lean on my brother If you are OK risking that, you can certainl sue him later if he fails to do the job.


I already got an assessment of about 130000. Can my sister buy it from us for 1/4 to each of us three? She is already selling her house to move. Sure! If you all agree, the Executor can sell it to her for market value, ($130k) and then split that the 4 ways, so essentially, yes she will be paying 75% for a $130k home.



The probate court is where I go if brother does not agree with me? I know nothing about probate court. Yes, it is a pain in the rear though. You may need a lawyer, should that occur, but you can see if you can file a petition on your own. For instance, an executor has a duty to the beneficiaries under the Will, by law. If you believe he is wasting assets (i.e. giving them away contrary to the Will), you can demand an accounting and if he refuses, petition the court to order he do so. The court will also remove him if it is clear he is unable or unwilling to fulfill his duties.

 

Good luck. I hope he starts to see the light sooner rather than later, for his good as well as your own.

AlexiaEsq., Managing Attorney
Category: Estate Law
Satisfied Customers: 11694
Experience: 19+ Years of Legal Practice in Estate Law.
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