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deseree

Member
What is the name of your state (only U.S. law)? ohio
if the will has an executor and it states that it is be share and share alike,
does this mean everything gets share with the 5 heirs?
or does the executor need to sell items to pay the debt of the estate first then share and share alike? does the executor have to ask heirs if they would like to purchase before he sells an item?
:(
 


latigo

Senior Member
Your questions are most general and can only be responded to as such. Also, they touch upon a very broad field of law.

“Share and share alike” of course means equally divided. But the persons that are to share equally must be identified in the will and the assets in which they are to share must be clearly designated in will and be in existence upon the death of the maker of the will.

Also, there are circumstances where a designated joint beneficiary does not survive the maker of the will and his or her children may take - not equally with the surviving beneficiaries of the same class or generation - but equally among themselves of that which a deceased parent would have received if living.

Moreover, any testamentary gift is subject to a number of factors. Example, the beneficiaries under a will are only entitled to receive the interest in the subject of the gift that was owned by the deceased at the time of death.

So if the assets were encumbered (money owned on them), the beneficiaries would take subject to the encumbrance or lien held by a secured creditor - such as a mortgage on a home.

In other words, they could only inherit what equity the deceased held in the property at the time of death.

(Nor could they compel the executor to pay the secured debt from other estate assets unless directed to do so by the will.)

Also, before any assets in a decedent’s estate can be distributed to named beneficiaries the executor of the will is bound by law to see that the costs of probating and administering the estate, unpaid medical bill, funeral costs, taxes owed and the legitimate claims of creditors are first paid.

Furthermore there is a certain order in which estate assets are to be sold and liquidated when needed to pay those priority expenses and creditors. And the first assets that must be sold are those that are not specifically identified in specie.

So here, for instance, if the will reads that the 5 named heirs are to inherit share and share alike the “rest residue and remainder of my estate. “Residual” meaning the balance of the estate not specifically bequeathed or gifted to an heir or heirs, and there was not enough cash on hand to pay the expenses I mentioned, then the residual estate would be the first to be sold and perhaps abate the gift.
____________________________

You ask: “Does the executor have to ask the heirs if they would like to purchase before he sells an item?”

The answer is not necessarily so. And only necessarily so if the will directs that he do so.

Otherwise the executor can do much as he pleases so long as it is shown to be in the best interests of the estate, its creditors and the heirs and not in violation of his fiduciary responsibility not to personally profit.

And generally speaking the executor can arbitrarily decide how “share and share alike” is to be applied in making distribution.
 

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