executor needs advice

[LolaW]

What is the name of your state (only U.S. law)? Missouri

What is the name of your state (only U.S. law)? Missouri

I have a difficult situation I'm dealing with right now. Hoping someone can give me some good advice, or suggestions on possible ways to proceed. It's a complicated, long story, will try to explain it without too much nonimportant details.

My dad died in August (mom died August last year). He had a Will, I am the executor, and the Will has been filed in probate court. Many years ago, mom and dad bought a house for my brother to live in (deed is in parent's names not brother). They did this because brother's child was born with many medical issues, and because brother has never been expected to support himself, they knew without a place to call home he wouldn't consider keeping their grandchild. So they bought him a small home, and never expected him to make house payments or take care of any utilities. Everything was in their name and they paid all the bills. Fast forward about 6 years. Brother has found the woman of his dreams, and has been living with her for the last 2 years. The house mom and dad bought has been his "flop house", used when he gets kicked out of the house, or wants to have a drinking party or store his junk. Now, the house has to be sold and with the market the way it is, I'm doubtful it will sell even close to what will be needed to pay off the loan. Brother has emptied the house, finally. The problem is with the garage, which is full of trash and junk. He keeps saying another week and he'll have it cleaned out. Today he says give him 2 more weeks.

My question is whether I can go in and clean out the garage and dispose of what's in there however I see fit. The probate lawyer tells me I can take the things and put into storage... but seriously, I'm not going to go in and pack up trash and pay for storage. I can't put it on the market with the garage filled to the rafters with trash. I don't want to clear out the garage, then turn around in a few months and have brother accuse me of stealing something of value.

My brother is irate because in the Will, he's left with very little. My mom and dad supported him and his family for the past 40 years, gave him the where withall to start a small business that is doing very well, and dad was just finished with giving to him and getting nothing but trouble, disrespect and heartache back. The disabled grandson is receiving over half the estate in a trust, the rest mostly divided between my sister and I. So, because he feels like he's getting nothing he's not doing anything to move this along and making things more difficult. Any suggestions on what I can and can't do with his items still left in the house?

 

[OHRoadwarrior]

Move everything of his into the garage. When the house sells, give him the same 30 days to remove his crap or it will belong to the new owners.

 

[tranquility]

My question is whether I can go in and clean out the garage and dispose of what's in there however I see fit. The probate lawyer tells me I can take the things and put into storage... but seriously, I'm not going to go in and pack up trash and pay for storage. I can't put it on the market with the garage filled to the rafters with trash. I don't want to clear out the garage, then turn around in a few months and have brother accuse me of stealing something of value.

I advise you to do what your probate lawyer told you to.

 

[LolaW]

Nobody is going to want to buy a house with a garage filled with trash. It's not like there is good stuff in there, or anything that might be of use. Anything that had any value has been ruined by having half-used oil cans, soda cans, food bags and wrappers and water spilled over it. We are talking about trash, collected because someone was too lazy to take something to the dumpster or dispose of another way... much easier to open the garage door and toss it in. Seriously, this stuff has been in the garage untouched except to throw things in for the last 4 years at least.

Is there really no legal way I can get him to remove his things? If he wants to leave his things there for the next year, stalling the chances of selling the property we are just out of luck? If we end up putting things in storage, who is going to pay for the storage shed? This isn't my stuff so I'm not paying. It's not dad's stuff, so the estate should not pay for it. So who?

Thank you for your help

 

[OHRoadwarrior]

You could clean it up. I suggest you take care to video and document what is there and what is thrown away. You should be able to freely dispose of the trash as belonging to the deceased. Advise your brother he needs to get what is left that might be his out, otherwise you will assume it was all the deceased. Be careful you do not trash antiques.

 

[tranquility]

You'd rather take someone to court over paying for storage?

It is time for you to step back and understand your job as an executor is to fulfill your legal responsibilities and your fiduciary duties. Your inability to choose the obviously correct course here and continue to argue about it shows a certain attitude which is not going to be helpful to you if there is ever a lawsuit saying you breached your duties as fiduciary or as an owner.

It's obvious you are in a disagreement. When there is a disagreement between the fiduciary and a beneficiary, the fiduciary wins. That is, no beneficiary will be able to stop you. But, the whole point of giving so much power to an individual is balanced by the duty placed on that individual. That duty can be sued upon if it is breached and a breach is not always obvious. Fiduciaries who get all emotional about ANYTHING in the settling of an estate are going to make choices which may very well bite them in the future.

Store the stuff. On distribution of the estate, send the key and change the billings to the owner. Let him do what he wants with hit then. (Or, use whatever plan the professional who has access to the facts and knowledge of local law and customs advises.)

 

[LolaW]

Honestly, I'm not arguing with your suggestions. I've never been in this situation so I'm just asking questions. No, I don't want to go to court over paying storage charges, I just think it's silly to pay storage fees for bags of trash. I also don't think I can change the billing for a storage shed to someone else without their consent. At the same time, there are 3 properties to dispose of, 2 houses full of personal belongings that have to be disposed of, all 3 properties need work before they can be sold, and all 3 properties are a 2 hr drive one way for me. I'm just a bit overwhelmed, I'm sorry if it seems like I'm arguing.

Dad had nothing there at that house, everything belongs to my brother. There isn't alot of money to pay for anything that's why my concern over selling as quickly as the courts will allow.

 

[OHRoadwarrior]

Have you considered using one property for storage, while the other is sold? Having an auction service come in and auction the 1 house and contents of 2?

 

[tranquility]

No, I don't want to go to court over paying storage charges, I just think it's silly to pay storage fees for bags of trash.

Fine. If something happens to it, you will have bought it. Many such fiduciary breaches have treble damages. If intentional, by throwing it away, treble damages for sure.

I also don't think I can change the billing for a storage shed to someone else without their consent.

On distribution? Who cares? If the person who's property it is does not pick it up or pay appropriately, he loses it. Even if the bill is not in his name. Mitigation is his duty at that time.

I'm just a bit overwhelmed, I'm sorry if it seems like I'm arguing.

That's why you obtain advice from experts like your attorney. While you are not legally bound to follow that advice, it is usually a good idea.

Dad had nothing there at that house, everything belongs to my brother. There isn't alot of money to pay for anything that's why my concern over selling as quickly as the courts will allow.

Are you sure? An error can cost you.

 

[LolaW]

Ok, so it looks like I won't be doing anything with brother's things. They will be left there until he decides he's going to clean it out or a higher authority than me makes him. There's enough on my plate right now to worry about, I'm going to put that on the back burner. I'll do the necessary repairs to the house and hopefully get it up for sale despite what the garage looks like.

Another question.... the house is not in the best of shape, to the point that I don't know if it will sell for anywhere near what is owed on it even with the repairs. If the house goes into foreclosure, I'm assuming the bank can collect the balance of what's owed from the estate? I've also considered trying a short sale if the bank would agree.