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Dwayne B.
Dwayne B., Attorney
Category: Estate Law
Satisfied Customers: 33063
Experience:  Estate Law Expert
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My dad died last September and left my brother and I as

Customer Question

My dad died last September and left my brother and I as co-executors to his estate. We have split all assets except he wanted to move into the house and said he would refinance and pay me my half of the house. There is a small mortgage on a rather large house and I left enough money in an account my brother and I are joint owners of to cover my half of the mortgage until he move in which was in early July of this year. He said he wanted to buy the house in November of last year and I said we needed to agree upon a purchase date which was agreed upon as end of March. Then he said he had to fix his house up and that he couldn't move in until end of June which we agreed upon and he again said he would pay me by that date which I now realize he had no intention of doing. So he has lived there since July and in lieu of asking for rent I have just let him take over that small mortgage until he can buy me out. So every month it is something else - he can't rent his old house until it ge
Submitted: 1 year ago.
Category: Estate Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

Is there a specific question with which I could assist?

Also, did you actually file the papers with the court to open a probate an be appointed as co-executors by the court?

Customer: replied 1 year ago.
the probate was completed and we are co-executors. Not sure if I clicked but this is in VA. The question was I'm worried that some type of time frame may pass to where he can state that I haven't paid any money on the house and that we live here and basically try to get out of paying me for 50% of my father's house that he now lives in. While due to probate we are legally "bonded" to split if he decides he just doesn't want to pay I'll have to get a lawyer sooner or later. So the question adds up to "should I get a lawyer now or give him more time?"
Customer: replied 1 year ago.
Ok, it appears my original post was cut off so here is the rest.... So every month it is something else - he can't rent his old house until it gets painted, next month the kitchen has to be redone, then some tile needs redone also. Another issue is since Dad passed he does not act like a brother anymore. I never get invites to anything family related, he has two kids, and I have to invite myself to things. He's been a jerk to me most of my life, he is two years older, so unfortunately this has come down to getting my paycheck from my Dad dying and not being screwed by my AHole brother who won't return my calls and actually answers maybe one per month. My worry is he is trying to wait out some type of eminant domain time frame to where he can claim the house as his own and not pay me my share so my question is should I go ahead and get a lawyer now so that doesn't happen or should I take the high road and be a patient brother and just wait a little longer?
Expert:  Dwayne B. replied 1 year ago.

I may be a little prejudiced in this because I don't think anyone should ever do a probate without a lawyer. Probate, real estate, and criminal law are the three areas that I think a lawyer is required, any of the other areas a person can handle themselves if they are willing to put the time in.

With probate you have a lot of personal liability if even the slightest mistakes are made and the law is complicated, archaic, and often makes absolutely no sense.

I don't think you have to worry about your brother claiming adverse possession (I think that's what you really meant instead of eminent domain) because at this time the property still belongs to the estate and as a co-executor he has a fiduciary responsibility to the estate and that should prevent him from claiming adverse possession.

However, it does sound like he is just living rent free which is against the rules and could get both you and him in trouble since you have the same fiduciary responsibility to the estate which means any property which could be generating income should be generating income.

If you go ahead and get the lawyer now they can both check over everything to make sure it was done correctly, the court doesn't do that even though many people think it is a duty of the judge, and the lawyer can help you move the matter to a final resolution which includes either your brother doing what he is supposed to or the house being sold to a third party.

When you became an executor technically you are no longer supposed to take anything into account other than what is best for the estate and if you do so then you are violating your oath and your fiduciary responsibility.