Unilateral application for Probate of a will

[blwetorch]

Hello,
I am new to this forum.

My Grand-mother has left a Will, declaring my father and my uncle as the 2 heirs of her house.
She expired in 1986.
My father and uncle, due to their personal disputes have not done anything about the Will. They have neither partitioned the property also legally.
They simply couldn't agree on how the house can be partitioned.
As a result, the property doesn't belong to them as of now, and naturally they cannot further Will it to their respective sons, that is, me and my cousin.
Can you guide me, as to what is the next step, that can be taken by my father?
My father says, we need to take a Probate of my Grand-mother's Will( excuse my ignorance of legal terms please) first.
He believes, my uncle is dilly-dallying about these legal steps, so that he can continue to occupy more than his share of the property( on the Ground Floor), as he is doing currently.
My father is asking, is it possible to take Probate of my Grand-mother's Will unilaterally, even if my uncle doesn't oblige, or be party to the activity?
Can you guide me as to how we can go about sorting this out?
Regards

 

[LdiJ]

Hello,
I am new to this forum.

My Grand-mother has left a Will, declaring my father and my uncle as the 2 heirs of her house.
She expired in 1986.
My father and uncle, due to their personal disputes have not done anything about the Will. They have neither partitioned the property also legally.
They simply couldn't agree on how the house can be partitioned.
As a result, the property doesn't belong to them as of now, and naturally they cannot further Will it to their respective sons, that is, me and my cousin.
Can you guide me, as to what is the next step, that can be taken by my father?
My father says, we need to take a Probate of my Grand-mother's Will( excuse my ignorance of legal terms please) first.
He believes, my uncle is dilly-dallying about these legal steps, so that he can continue to occupy more than his share of the property( on the Ground Floor), as he is doing currently.
My father is asking, is it possible to take Probate of my Grand-mother's Will unilaterally, even if my uncle doesn't oblige, or be party to the activity?
Can you guide me as to how we can go about sorting this out?
Regards

Your grandmother's will should have named an executor. If both your father and your uncle were named executors then your father needs a consult with a probate attorney.

 

[latigo]

. . . My Grandmother has left a Will, declaring my father and my uncle as the 2 heirs of her house. She expired in 1986. . . My father and uncle, due to their personal disputes have not done anything about the Will. . . . .Can you guide me as to how we can go about sorting this out?

First, the only way this can be sorted out is by your father hiring an experienced probate lawyer. Probate laws and procedures are far too complicated for the layperson.

Secondly, after a lapse of 25 plus years from date of death it is very likely that the time limit for probating grandma’s will has lapsed. Those limits vary widely from state to state. Anyway your father’s lawyer will know.

But if that is the case – the will cannot be admitted to probate - then it would seem to be to your father’s advantage.

Because regardless of whom grandma may have nominated to administer her will, your father could petition (unilaterally) to have the estate administered and distributed in accordance with the state’s laws of intestacy and ask for his appointment as the estate’s representative.

Undoubtedly uncle would have equal priority for such an appointment, but if dad’s lawyer is clever enough he should be able to avoid the appointment of co- representatives due to the uncle's uncooperative and obstructive conduct in refusing to timely submit the will.

But most IMPORTANTLY is that this home be sold during probate. IT MUST NOT be distributed in kind. Meaning with each ending up owning an undivided one half of the whole. Sell it during the probate administration and distribute the net proceeds.

Make sure that your father’s lawyer agrees that a cotenancy relationship between the brothers needs to be avoided at all costs!

If s/he does not agree, then hire someone that is aware of the legal nightmares created by estates in cotenancy.

 

[blwetorch]

Thank you guys for your posts/ advice.
I shall try to convey these messages to my father.
By the way, I am from Kolkata, India**************...hope your advice works there as well.
I shall keep coming back for further queries, if need be.
Regards

 

[ShyCat]

By the way, I am from Kolkata, India**************...hope your advice works there as well.
I shall keep coming back for further queries, if need be.

No, this site is for U.S. law only. No one here can advise you on Indian law.

 

[blwetorch]

No, this site is for U.S. law only. No one here can advise you on Indian law.

Thank you very much. But anyway, I have got the gist of issues. Most probably, the course of action will be somewhat similar.