When both children are beneficiaries and both are executors, it should be a simple result. Sell the house and split the proceeds as the father instructed. However, if one child feels this to be unfair, it can cause issues, especially when no one lives in the house, no one wants to and it just costs the heirs money each month.
Nj.com’s recent article entitled “I’m fighting with my sibling about an inheritance. What can I do?” says that this is an example of the estate planning issue of treating heirs equally rather than equitably.
An executor cannot to act in his or her own personal interest. Instead, the executor must act in the best interest of the estate. They have what’s called a “fiduciary duty.” Thus, as joint executors, the two children in this example owe a fiduciary duty to implement the terms laid out in their father’s will, unless the will is successfully contested.
When real estate is left to named heirs, the executor can either sell the property and divide the proceeds as specified in the will, or distribute the house “in kind,” which means that the beneficiaries would become co-owners. If the beneficiaries don’t want to be co-owners, the best solution is to sell the property.
While neither child wants to keep the home, it’s also possible for one of them to buy out the other’s share based on a fair market value of the house. If they can’t resolve the dispute amicably, the courts will need to be involved.
The dissatisfied child could file a lawsuit contesting the will. If deadline to do this has passed, the will should stand. Even if the child does contest the will within the required time period, it will be hard for her to succeed. The two most common grounds to contest a will are to show that the testator wasn’t competent to sign it, or to show that somebody exerted undue influence over the testator.
If dissatisfied child doesn’t contest the will — or if she does contest it but fails — she’s legally obligated to put aside her personal desires and comply with her fiduciary duty to implement the will.
If she refuses to do so, the other child can ask the court for help resolving the matter. This would involve filing a complaint seeking to remove the dissatisfied child as co-executor and name the other as the sole executor.
He would ask the court to enter an order, called an “order to show cause.” This order states deadlines for the dissatisfied child to defend her conduct and oppose the relief requested.
While you’re not required to have an attorney for this process, it will be difficult to navigate the process without one. Work with an experienced estate planning attorney.
Reference: nj.com (Aug. 9, 2022) “I’m fighting with my sibling about an inheritance. What can I do?”