wvguy said:
What is the name of your state? WV
My mother past away 3 years ago and my oldest brother is the executor of the will. Her house is the only thing of value that she had. He has yet to do anything about it because he lives in the house rent free with his wife. My other brother doesn't want anything and said for us two to split it. Does this need to go through probate ? I would say the value of the home and lot is between $65,000 - $75,000.
My response:
First of all, and despite what the Will says, your brother IS NOT the "Executor" of your mother's Will UNTIL a court says he's the "Executor".
Now, there's the issue of your oldest brother having control of the Will, and the fact that he hasn't had the Will admitted into Probate. And, the reason for that is because he's living in the house - - "Her house is the only thing of value that she had. He has yet to do anything about it because he lives in the house rent free with his wife."
What your brother has done, and continues to do, is to create, cause, and continue to cause, a "conflict of interest"; i.e., the house is still in Mom's name, and to have the Estate probated would mean he would be required to sell the house and distribute the assets thereof to the heirs - - YOU.
Doing that would effectively "put him out of house and home". Since he has such a "sweet deal" going on, there's no impetus (reason) for him to have the Will admitted to Probate. As long as he's doing that, he's cutting you out of your share, using YOUR money, not paying rent to the Estate, and causing your share of the Estate to be diluted. In my eyes, that's quite a bit of damages he's causing you.
So, in order to "fix" this "conflict of interest", you need to either drag your brother, along with the Will, to see a Probate attorney and to start the process, or since he's likely to refuse because he has made himself such a "sweet deal", then it's up to you to see a Probate attorney on your own and have the Estate probated WITHOUT the Will.
Doing that will eventually drag your brother off his ass, and to come forth with the Will - - especially if he wants to be appointed as the Executor. However, you're going to later bring your brother's "conflict of interest" that he caused to the court's attention, and the damages he has caused to you over the last 3 years, and that the court should appoint YOU as the Executor!
Courts don't like hearing about the damages your brother is doing to you, and the purposeful "conflict of interest" brothers like him are causing.
Good luck.
IAAL