Real Estate and Co-Executors

[Trying2Settle]

What is the name of your state? OK

My father passed away six months ago. My brother and I, the only heirs, are going through probate on my fathers estate. Because of disagreements between my brother and I and our wives, I want out or have offered to buy him out of the real estate so we don't have to deal with each other. I have proposed that we get an appraisal to get the value to determine what I or he would need to pay. He wants to have a realtor give us a Current Market Analysis and settle probate and then sometime in the future him and I could do something with the house. I am opposed to this becasue currently the Estate Account is taking care of the bills for the house and etc. and once he gets his money from the Estate Account I don't want to be in a situation where I need to beg him for money to pay the bills or for money to fix up the house. Also there is no mortgage to deal with, only the utility and maintance bills for the property. There is some money to be gained, house value, if it's updated, and I am willing to let him have that to get out.

What are my options if he refuses to buy me out or vice versa?

Thanks, for any advice.

 

[tranquility]

Absent agreement among the beneficiaries (where changes can be made by different vehicles), property must be distributed according to the will or trust or by intestate succession. There is nothing you can do to change that. Only after distribution can the parties (heirs) force people to do things. The only way to force a co-owner out is by a partition lawsuit.

Deal with the brother. Your fears are legitimate, but you have no power over the situation beyond persuaision.

 

[Trying2Settle]

If my brother insists that we co-own the house 50/50, would it be unreasonable to request in probate that the estate account be kept in place to pay the costs to maintain and update the house. Once updated, we could sell the house while still in probate and then distribute the estate money?

If my brother disagrees to this and also disagrees to selling or buying me out at appraisal (current value) would the judge realize that he is just being difficult and help settle this.
Do I have to agree to settle this estate before we sell the house??

Thanks for the reply......

 

[tranquility]

Who is the executor?

If it is the brother, move on and deal with him.

If it is someone else, you would need to convince there is a legitimate reason beyond your disagreement to sell the property. Then the executor would need to go before the court to get permission to sell the property before distribution. It is not proper to keep the estate open because of what you have communicated so far. If you were the executor and brother went to the judge asking why the estate has not closed, you would probably be removed.

In terms of the estate legalities, it is *you* who is being difficult, not brother. It is not the goal of probate to make the heirs happy, it is the goal to properly distribute the property. Your fears are personal and not really related to probate or the estate. You want to include the "problem" in the estate because you don't want to deal with this matter appropriately. It's not that I don't believe you, it's just that it is not an estate issue. It is an issue for you and brother to resolve amicably or in a petition lawsuit after distribution.

 

[Trying2Settle]

My brother and I are co-executors for the estate.

Thank you for explaining the purpose of probate. I'm not trying to be difficult, just wondering what my options are. I have been the only one doing the yard work and checking on the property. My brother has told me the house can sit and rot for all he cares. Since I am part owner currently, I feel I have a responsibliity to the property and the neighbors to keep the place presentable. I basically don't want to do everything myself and feel it will get worse once we are out of probate now that he has told me he may be moving to a new town 2 hours away.

Please help me understand: If we have a vehicle, which is titled property, we can decide to sell or one of us buy the other out of it before probate ends. Why can't we do this with the house? If my brother doesn't want to sell the house now, isn't that the same as saying he wants the property? I'm saying that's fine let's get it appraised and pay me my half. I thought I was being very amicable in the fact that I am willing to get out or buy him out, too be done with it all now and not drag this into courts later down the road.

Thanks for your relpy,

Trying2Settle

 

[seniorjudge]

Sounds like you need a lawyer to file motions to get stuff sold.

 

[Trying2Settle]

We have an estate attorney, but don't get much advice because of representing both me and my brother. I could hire my own counsel, but according to Tranquility in earlier posts, there not much I can do during probate.

Thanks,
Trying2Settle

 

[tranquility]

Since I am part owner currently, I feel I have a responsibliity to the property and the neighbors to keep the place presentable.

That thinking is why you are having problems. You are not part owner of the property. The estate owns the property and you, as co-executor, have control--subject to the court. You have a fiduciary duty to the beneficiaries. One of those duties is to prevent waste of the property. Upkeep is necessary to prevent waste and estate assets can be used for upkeep. If there is no free money, assets can be sold (with court approval) to pay for such things and to resolve debts. The court will not grant approval if all business of the estate is finished and all that need be done is distribution. However, if other things still are in process (bringing together assets, taxes, debts etc.) you may get approval for sale. But the reason is not that brother will be a hassle after distribution, but because you need to turn the asset into cash to deal with the estate.

If we have a vehicle, which is titled property, we can decide to sell or one of us buy the other out of it before probate ends. Why can't we do this with the house?

You can. As I wrote:

Absent agreement among the beneficiaries (where changes can be made by different vehicles),

If the agreement is sourced from money changing hands, that's not an estate issue.

If my brother doesn't want to sell the house now, isn't that the same as saying he wants the property? I'm saying that's fine let's get it appraised and pay me my half.

He can deal with you or not, depending on his whim. You didn't want a deal you wanted to force him to do something.

What are my options if he refuses to buy me out or vice versa?

If he refuses to deal, you must wait for distribution and file a partition lawsuit.

I thought I was being very amicable in the fact that I am willing to get out or buy him out, too be done with it all now and not drag this into courts later down the road.

That sounds fair to me too. (Where one person cuts the cake and the other chooses the piece he wants.) However, he doesn't want that for some reason. Why? That's the negotiator's job, not to tell the other party what they want, but to discover what the other party wants and try to get it to them in a way which is best for the negotiator.

 

[Trying2Settle]

However, if other things still are in process (bringing together assets, taxes, debts etc.) you may get approval for sale.

We are very much still in process. The reason this issue has come up is becasue our accountant needs a valuation on the house to do the accounting and taxes for the estate.
So what should I ask for or tell the estate attorney to get court approval to sale the house?

Thanks,
Trying2Settle

 

[tranquility]

You need to get a valuation of the property by a qualified appraisal. Get one. Your intense desire to sell the house for personal benefit will land you in trouble as a breach of fiduciary duty to the other beneficiaries--including your brother. If there is a legitimate *estate* reason to sell the house make the case to the estate's attorney so he may start the process of asking for the court's approval. The court is unlikely to grant the approval (and the attorney is unlkely to act) without agreement of both executors on the course of action.

What is the estate (not Trying2Settle's) reason to sell the property?

 

[Trying2Settle]

There are no other beneficiaries. To be breech in my fiduciary duty I would have to profit from something I did. If the estate has an appraisal and lets say the house values at 120k. Then the reason to sell the house would be for distribution of estate property. 60k to both of us. I'm not profiting nor is he, it's the value that the estate has put on the house. How does that sound?

Trying2Settle

 

[tranquility]

You are in error as to the requirement for breach. There are many fiduciary duties and you would be well to read up on them. You have not stated any reason for sale as the house can easily be distributed simply by changing title rather than going through sale.

Re-read my prior posts as I have given you what you need. By continuing to go down the path of trying to get what you want you will be sorry in the end. See an attorney as beneficiary (where the estate does not pay) for specific advice. Ask your questions of the estate attorney for advice as to your duties.

Bottom line based on everything you've said and the last I'll write on the subject.

DEAL WITH BROTHER AND GET HIM TO AGREE. If he does not, you will not get what you want because you can't force the issue with the facts you've stated until you become owner of the property and then can file for partition in order to sell.