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brother living in estate home without consent

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catira

Guest
I live in Florida and my mother passed away. My 1/2 Brother was living in my moms house ever since she petitioned to bring him here from Quito Ecuador. She owned a duplex and it was rented out. My brother collected rent for 3 months and pocketed it even though i told him that the money needed to go to pay the mortgage.This all happened while i was waiting to get the letter that named me personal rep. I ended up making the mortgage payments out of pocket. He has been living there rent free now for a year and my sister and i feel he owes rent fom the date mom died to present.
My attorney says he doesnt know if we can make him pay back rent:confused: What the heck is that supposed to mean? He has stolen from the estate and is living there scott free. He is not even cutting the lawn. I feel totally lost. My attorney takes up to 7 days to return calls. I believe it is probably because this is a small estate and not really worth his time. So I need to know: can i charge back rent ? Can i evict him? How do you file charges of theft against an heir?
 
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catira

Guest
Please some one help!! I have a meeting with my attorney in a few days and i would like to know what i can suggest to be done about this situation and how.
 
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hexeliebe

Guest
If he is your 1/2 brother then he has as much right to his "Share" of the estate as you and your sister. Unless your mother had a will that specifically stipulates who gets what the estate will have to be probated.

Until then, i doubt very seriously if you can get him to pay rent.

So, the next question is what are you going to do with the estate property? If you and your sister want to resolve this matter you can petition the court for a Partition for Sale that requires the court to sell the properties and distribute the proceeds according the the will, if it exists, or the interest of the individuals in the property.

However, you will have to go through probate first to determine how much each party owns.
 
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catira

Guest
Brother living in estate

I know he has a right to his share that was never in question but what remedies or penalties are there for him having stolen rent money from the estate? As for a will my mother died intestate(fun) Why would he be allowed to continue to use the property until it is sold? That is something that we dont have the opportunity to do(live rent free). Will the court charge him something for having recieved free accomadations? If not they should. Why should i pay the mortgage so he can live for free?I want to sell the place but it is difficult to prepare it for sale with him living there. I think it will probably have to be sold to be sold at a reduced price because of all this. He will probably not accept a buy out. He is too greedy and will want more than is feasible.
 
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hexeliebe

Guest
What the court SHOULD do is not controlled by your or your sister's wishes. What the court Will do is controlled by the law. And according to the law your 1/2 brother has as much right to live in the home as you do.

If you want this over with then take the estate to probate, get it settled then petition the court for a Partition for sale. If you think the sale will be at a reduced price, go over and cut the grass.

Yes, he's taking advantage of you and your sister. But that's the way the cookie crumbles.

You can also ask for a trustee to be appointed for the estate and the trustee has the right to demand payment to the estate for any rents and/or repairs.
 
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catira

Guest
Thanks for responding. I for one am afraid of him so going over there and cutting the grass is out of the question. But what is this about appointing a trustee? can you explain what a trustee does for a probated estate? Nobody has ever mentioned this before. I am not trying to control The probate court i just want to understand what is going on. I have never had anyone die on me before and never expected something like this to happen in my family. I always felt we were very close and i have even helped my brother out on various occassions in the past. I even got him a job at my husbands company. So you can imagine that this attitude from him is sort of a shock. He is still working at my hubby's business. by the way i want to thank you for responding to my post
 
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hexeliebe

Guest
Go to a probate attorney and explain the situation to him/her. Tell the attorney that you need to get your mother's estate probated and a trustee appointed so that you can get the estate and all expenses and revenue of the estate settled before closing out the estate.

He/she will explain the particulars to you and depending on the laws of your state, the expense of the attorney can then be charged back to the estate.

But you need a specialist for this. Not just any attorney. And it doesn't matter how large or small your mother's estate is.
 
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catira

Guest
The attorney i have is a family law attorney. Im meeting with him on wednesday. Ill ask him about appointing a trustee. This process has been very painful for me. Im going to make sure everything i own is put in trust so my children never have to go through what i am going through. But thanks for your time
 
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hexeliebe

Guest
you're most welcome. And although you have thought about the trust, don't forget the will. I have had one since I was 23 and not making much money and have had it updated every year as my situation changed. Now, semi-retired and living off my investments and interest at 48, my will is still an evolving document with my children taken care of for the rest of their lives.

You can have an estate, but the will is the pin that holds everything together.
 
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catira

Guest
I have a will but it needs to be revised now that my mom is gone.
I dont think the will is at all enough any more. Besides we have enough that we would have some serious estate taxes. Thats great that you retired at 48. Just curious what was your Job / business. My husband and I are preparing to do the same thing he's a gen contractor and im a RE agent. He's 45 and im 36. were probably going to start setting the company up so it runs itself and let us get the heck out of here. Thanks for all your input.
 
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hexeliebe

Guest
I designed a small little program that is used by more than 14 million people yearly....

I was VERY lucky.
 
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catira

Guest
Awesome! but if i know anything nothing is really luck it's just part of the equation. Good for you!!
 

Dandy Don

Senior Member
What is the value of this estate? Is there a will or a trust, or a will AND a trust?

Since there is still a mortgage outstanding on the home, there would seem to be no need for probate, since the home is still owned by the mortgage company and mother has no legal right to describe what happens to it in her will. What is the outstanding balance due on the mortgage?

If you haven't done so, then you need to be talking to the mortgage company about finding out exactly how much equity your mother has in the home--if you want to sell and the mortgage company agrees, it might be a nice way for you to make a little bit of profit--otherwise, you need to decide now if it is going to be you or the brother who continues to make official monthly payments on the mortgage. As personal representative you need to be contacting the renters and informing them officially by certified mail that they should be making payments to YOU and not your brother.

Brother has no legal rights to be in the home since it still belongs to the mortgage company. YOU as personal representative have the right whether to let him continue staying there or not, and you also have the right to charge HIM rent. If he won't agree to rent then start eviction proceedings with the advice of a local eviction attorney, since eviction procedures must be strictly followed to be done correctly.

You could file charges against him for theft of the rent money, but you need to make absolutely sure before you file charges how you stand legally. Did mother give him permission to collect the money after she died or were you possibly lax (because of ignorance) by forgetting to inform the renter that YOU needed to be paid instead of them paying the brother? If you forgot to inform them, then it is somewhat your fault for this situation.

DANDY DON IN OKLAHOMA ([email protected])
 
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catira

Guest
My mother did not have a will. I was not officially personal representative at the time he stole the rent money. He called and asked me if he could collect the rent . He's my brother and i had no real reason to mistrust him. I thought it was reasonable at the time. I told him he could but that the money needed to be used to pay the mortgage. He agreed that he would collect money and pay mortgage. At the beginning of this until my brother stole the rent money we were going to allow him to stay there until division occured since he had been living with my mom. my sister and i were actually considering giving up our shares so that he could have the duplex outright... But as you can see he didnt do what he was supposed to do so forget that. But I was not personal representative yet and was not until the judge signed on may 22 a month ago. My brother also tried to revoke his consent but the judge didnt go for it and still appointed me. The duplex is worth about 80,000 to 95,000 in as is condition however with repairs it would be worth 130000. It has a 23,000 Fixed rate mortgage. The value after the debts are subtracted is about 43000. What do you mean file charges? Can you file charges in a civil case. I have spoken with the renters and they said they would testify if they were needed. As for who is going to make the payments on mortgage since my appointment it will be me and only me.
 
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Dandy Don

Senior Member
This might be a small claims court case depending on the total amount of rent owed. You can do everything yourself, just go down to the courthouse and fill out the paperwork.

If brother wants to continue staying there, you need to get a signed rent agreement from him. Explain that for now he is NOT part owner of the house and won't be until the mortgage is paid in full. If I were you I would evict him and let him live somewhere else, since he has shown that he will not be a dependable monthly payer. Either rent the house out to someone else or move in yourself.
 

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