On Jul 23, 7:11 am, George <gbecc...@gmail.com> wrote:
> I will be executor for my mother. One provision of her will left some
> property to my brother, which he is unsure whether he wants.
First of all,, my condolences on your mother's passing.
Second of all, is your brother usually so indecisive, or is he just taking advantage of your kindness and good will?
Whichever the answer is, it will likely continue indefinitely unless you do something about it.
You have a lawyer. You mention below that he tells you "how" to transfer the property, but you don't say whether he has already suggested to you "what" to do. Unless you're leaving something out, I'm not sure you've been fully informed of the consequences, to YOU and to the estate, if you take steps that differ from the dictates of Mom's Will. In other words, did you know you could be held personally liable to your brother, all else being equal, if you just go ahead on your own and sell the property to a third party, and then your brother comes along and says, "Where's the house Mom left me?" So you need to make your BROTHER be the one who has to fish or cut bait. Didn't your lawyer tell you this already?
> If he
> doesn't take it, we would need to do some substantial repairs to make it
> saleable. I don't want to go ahead with spending other estate funds on
> these repairs, and then have him decide that he does want it, after all.
Right. Because then Bro would have been unjustly enriched, at the expense of all the other heirs who helped pay for the repairs to his new house. Or else you would have to back those costs out somehow, from the rest of Bro's share. If the house is the only thing Bro gets, that would be tough to do.
> I'd also like to keep things moving.
Right. So would the probate court, which probably has given you a deadline to make a final distribution and close probate. Here's my suggestion: put this all in writing. Tell your brother that Mom's Will says he gets the house, and you're getting ready to make a final distribution. Tell him he has to either inform you, in writing, that he is waiving his claim to the house, BY A FIXED DEADLINE not too far in the future and on a form (drafted by your lawyer) that YOU PROVIDE him, or else you will have no choice but to go ahead with the terms of Mom's Will and deed the house over to him, "as-is". Then he will be the one who will have to deal with the white elephant, not you. Meanwhile, you will have done everything exactly according to Mom's Will and no one will have any grounds to complain.
You didn't mention, so we don't know whether Mom's Will provides some alternate bequest to Bro if he declines to accept the house. Your state's law may also provide that in the event he turns it down, you should sell it and Bro should get the cash value of the sale (minus any costs you had to put into it from estate funds to make it saleable, and the costs of sale, such as realty commissions, fees, etc.) If it doesn't, IMO you have no power to take anything from the other heirs' bequests to give something to Bro, unless all heirs and potential heirs consent in writing, and even then it's probably a bad idea to do so. In any event, consult your lawyer and follow his specific advice, which I'm sure has gone something along these lines if you've been paying attention.
> Our attorney said (in passing) that I could do an "executor's deed".
> But, in what I've read about that, it looks like it's just what the
> executor does to tranfer title to a new owner - it's not clear that it
> gives me any particular power to force him to take the property or
> disclaim it.
Maybe you're not understanding what he's saying, or not asking him the right questions so he doesn't know you have an issue. It sounds like he has advised you to DO an executor's deed, and transfer the house to Bro; it sounds like he is already recommending that course of action. Why would you think this is just an intermediate step? Once you deed the house to Bro, it's his, period. So if you still want to give Bro some chance to change his mind and decline the house, you need to run that by your lawyer ASAP and see what he says to do in that situation. My guess is he'll propose a fish-or-cut-bait letter to Bro, unless you've already been down that road and Bro has already ignored it, in which case it's time to cut the bait.
--
This posting is for discussion purposes, not professional advice.
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For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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