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Interpreting a will?

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missi frowein

Junior Member
What is the name of your state? NC
My father passed away in January. His will reads as follows;
Article I - Basically all debts are to be paid.
Article II - I devise my home at ...... Goldsboro, NC together with the contents thereof and the sume of TWENTY THOUSAND DOLLARS AND NO CENTS to my son, (Myself) in fee simple absolute.
Article III I bequeth all automobiles which are titled in my name at my death to my son, (myself), in fee simple absolute.
Artice IV I will, device and bequeth any other real estate I own at the time of my death to my son ......(my brother) in fee simple absolute.
Article V All the rest, residue and remainder of my property of every sort, kind, and description, whether real, personal, or moxed, and wheresoever situate, I will, devise and bequeth unto my two sons in equal share in fee absolute.
Article VI I hereby appoint my sons (my brother and myself) as Executors of this my last will and testament, giving and granting unto said Executors full power and authority to do any acto or thing, reasonable or necessary, for the proper administration of my estate.
The point of contention is this. My father told me before he passed he wanted his property to be shared between my brother and I. He purchased 50 acres of land with a home and a large shop which he used to run a business 10 yrs ago. He wrote his will 5 yrs ago. and he died this last January. When he built the house he had a legal description for roughly half an acre around the house for the bank as collaterol on a small loan he used to finish the house, of which he paid off immediately. The deed on the house shows the residence, shop and 50 acres for the past 11 yrs. The bank never actually made a deed for the loan. Dad's wishes to me were for me to inherit the house/25 acres and my brother to inherit the shop/business building/25 acres. My brother acknowledges my father wanted the estate to be split 50/50, but dad is no longer here and he feels he deserves more of the estate because he lived near dad and I lived out of state. He feels the will reads I inherit the house and half acre of land and he inherit the shop and all 50 acres. I have consulted 2 attny/s. One advised it was clear the will did not intend to leave my brother out and since he owned NO OTHER REAL ESTATE at the time of the writing of his will or his death he surely must have meant to leave the house with a small amount of land to me and the rest of the land to my brother. The second attny advised since dad is not here to say what he means that the will stands as read, which is the house to myself. The house is deeded with 50 acres so I inherit all 50 acres. He said the will states my home at... and that is deeded at the time of his death with a house/shop/50 acres...period. I have tried with no avail to have my brother to agree to splitting the estate 50/50, but he is stubborn and refuses. He is adament the will means for him to have all 50 acres. Additonally, he agrues the fact that dad had portioned, although never deeded a half an acre around the house when he took a bank loan out that is the amount of land dad felt I should have with the house, and that will stand up in court. I do not have alot of $ to settle this, the one attny quoted a $5,000 retainer and the bill could easily hit $15,000 I would love to find a way to convince my brother to settle this fairly out of court. I would greatly appreciate any/all advise or suggestions on how I can proceed forward. I see valid points from both attny's, of course I would like to proceed with the attny who quoted $5,000 retainer and believes we can ask for all due to the way the property is deeded and at a minimum the court order the estate to be sold and split 50/50. However, the other attny's argument is equally compelling and $5000 is alot for my family to loose in the end if the other attny is accurate with their interpretation, and I am SO CONFUSE! Thank you so much in advance for any/all advice.
 


seniorjudge

Senior Member
missi frowein said:
What is the name of your state? NC
My father passed away in January. His will reads as follows;
Article I - Basically all debts are to be paid.
Article II - I devise my home at ...... Goldsboro, NC together with the contents thereof and the sume of TWENTY THOUSAND DOLLARS AND NO CENTS to my son, (Myself) in fee simple absolute.
Article III I bequeth all automobiles which are titled in my name at my death to my son, (myself), in fee simple absolute.
Artice IV I will, device and bequeth any other real estate I own at the time of my death to my son ......(my brother) in fee simple absolute.
Article V All the rest, residue and remainder of my property of every sort, kind, and description, whether real, personal, or moxed, and wheresoever situate, I will, devise and bequeth unto my two sons in equal share in fee absolute.
Article VI I hereby appoint my sons (my brother and myself) as Executors of this my last will and testament, giving and granting unto said Executors full power and authority to do any acto or thing, reasonable or necessary, for the proper administration of my estate.
The point of contention is this. My father told me before he passed he wanted his property to be shared between my brother and I. He purchased 50 acres of land with a home and a large shop which he used to run a business 10 yrs ago. He wrote his will 5 yrs ago. and he died this last January. When he built the house he had a legal description for roughly half an acre around the house for the bank as collaterol on a small loan he used to finish the house, of which he paid off immediately. The deed on the house shows the residence, shop and 50 acres for the past 11 yrs. The bank never actually made a deed for the loan. Dad's wishes to me were for me to inherit the house/25 acres and my brother to inherit the shop/business building/25 acres. My brother acknowledges my father wanted the estate to be split 50/50, but dad is no longer here and he feels he deserves more of the estate because he lived near dad and I lived out of state. He feels the will reads I inherit the house and half acre of land and he inherit the shop and all 50 acres. I have consulted 2 attny/s. One advised it was clear the will did not intend to leave my brother out and since he owned NO OTHER REAL ESTATE at the time of the writing of his will or his death he surely must have meant to leave the house with a small amount of land to me and the rest of the land to my brother. The second attny advised since dad is not here to say what he means that the will stands as read, which is the house to myself. The house is deeded with 50 acres so I inherit all 50 acres. He said the will states my home at... and that is deeded at the time of his death with a house/shop/50 acres...period. I have tried with no avail to have my brother to agree to splitting the estate 50/50, but he is stubborn and refuses. He is adament the will means for him to have all 50 acres. Additonally, he agrues the fact that dad had portioned, although never deeded a half an acre around the house when he took a bank loan out that is the amount of land dad felt I should have with the house, and that will stand up in court. I do not have alot of $ to settle this, the one attny quoted a $5,000 retainer and the bill could easily hit $15,000 I would love to find a way to convince my brother to settle this fairly out of court. I would greatly appreciate any/all advise or suggestions on how I can proceed forward. I see valid points from both attny's, of course I would like to proceed with the attny who quoted $5,000 retainer and believes we can ask for all due to the way the property is deeded and at a minimum the court order the estate to be sold and split 50/50. However, the other attny's argument is equally compelling and $5000 is alot for my family to loose in the end if the other attny is accurate with their interpretation, and I am SO CONFUSE! Thank you so much in advance for any/all advice.

Article VI I hereby appoint my sons (my brother and myself) as Executors of this my last will and testament, giving and granting unto said Executors full power and authority to do any acto or thing, reasonable or necessary, for the proper administration of my estate.


This very clear.

Take everything that pa had that belongs in his probate estate and split it half and half with your brother.
 

missi frowein

Junior Member
Thank you so much SeniorJudge for taking time to reply to my problem! I have tried endlessly to convince my brother to divide up the estate and split 50/50. He is adament that his attorney advised him he is entitled to the entire 50 acres, so he will not agree. Since we are both executors do I have to have my brothers permission to divide the estate 50/50 and split? If he doesn't agree (which I assure you he is very stubborn and not willing what so ever) what steps do I have to take to get to this point? Can I do this without having to retain an attorney? This is where my problem comes in. Two different attorney's have advised me two different ways, so now I am really confused because the attorneys do not agree on how to proceed. I do not want to ask for the entire 50 acres despite the one attorney's advising that the will reads I am entitled to the entire estate. Dad wanted the land split equally and I want to honor my fathers wishes. Bro doesn't want to split equally and feels the law is on his side in interpreting the will, so he is telling me to hire an attorney and take him to court because he will eventually win all 50 acres and I will be out the land and the attorney's fees. My bro has never played fair, my dad asked me to stand up for myself because he knew my brother would try to take the entire estate. I want to stand up for myself, but if the will reads like my brother states and I am not entitled to 25 of the 50 acres I hate to spend $5000 - $15000 of my families savings to walk away in the end with nothing more than the brother is willing to agree to now which is the house and half an acre to me, the shop/business and 50 acres to himself. The land is valued at $5,000 an acre, so there is some substantial money involved in the land. Thank you again in advance!!!
 

lwpat

Senior Member
The will is clear. You own the home in Goldsboro and all of the real estate that is a part. The deed controls. This is made even clearer by Article IV "any other real estate."

The brother could argue this is supposed to be the half acre but there is no deed so he will probably lose. You have been more than fair to offer to split and this is the worst outcome for you. You have a lot to gain and he has a lot to lose.

Hire an attorney to represent the estate and let them petition the probate judge for a decision. This way the legal expense will come out of the estate. Then ask the court to assess his portion for the entire expense.
 

missi frowein

Junior Member
Thank you so much lwpat for your reply :) Can I hire an attorney to represent the estate without my brothers permission since we are co-executors? Assuming I do need his signature or approval this is a real problem as he is completely unwilling to cooperate at all. So, knowing the brother won't agree to hiring an attorney for the estate, how would I proceed? Would I petition the judge myself as an individual to allow me to hire an attorney to represent the estate? Again, thank you so much in advance!
 

lwpat

Senior Member
Talk to the probate clerk handling your case. They cannot give you legal advice but can point you in the right direction. You can have one of the attorneys you have already talked to petition the court on your behalf.
 

missi frowein

Junior Member
Thank you so much lawpat and seniorjudge for taking the time to read and help my family. I have taken your advise and retained an attorney, actually two that work in the same office. One specializes in probate and the other litigation. I mailed off their retainer this afternoon and am looking forward to being able to resolve this situation so I can move on. The rest of the family were able to attend dads funeral and move on, I cannot move on until I settle all his affairs and I was in a real unsure position until I received your advise. What a great board this is and thank you again to all of you who take your time to help those in a crisis!?!?
 

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