Legal Question in Wills and Trusts in North Carolina

North Carolina. Mother died with no will. House has 2 mortgages. 3 brothers are heir to the property. 1 brother lives on the property. He is administrator of the estate. He has paid the mortgages and property tax for 3 years. He has not settled the estate with the other 2 brothers. The 2 brothers want the estate partitioned and sold. The brother that lives in the home says he is entitled to be paid back for his mortgage payments and other cost. He is the administrator that has not done his duty by law. Is he entitled to anything other than his 1/3 of the estate?

Asked on 8/23/13, 10:11 am

1 Answer from Attorneys

You have a mess. If mother died without a will and no surviving spouse, then you and your brothers would inherit all the property equally. Title to land vests immediately as of the minute of mother's death in all of the heirs. That means that all of the heirs jointly own the property and are entitled to possess it. That also means that each of them is liable to pay a share of the mortgages on it and taxes in proportion to their ownership interests. Land is inherited subject to the existing mortgages.

So what is the home value? How much was owed on the mortgages as of the date of death? Have either of your siblings and you contributed towards payment? If not, then that means that your brother has been paying more than his fair share. Of course, the home also has a rental value - your brother would have to pay rent minus his share of the rent.

You claim that your brother has not done his duty by law. If that is the case then why has the clerk not removed him? The clerk has the power and after 3 years this is inexcusable. Most estates are wrapped up in 1-2 years at most unless there is some other complicating factor here. Have you checked the estate file to see what has or has not been done? What duties by law has your brother no fulfilled? Did he file an inventory and accounting? Publish notice of the death? Paid any creditor's claims? When the estate is ready for review of the final account, that is where the personal representative could ask for compensation for his services. Fees are approximately 5% of the probate assets and claims administered. However, fees are up to the court clerk to rule upon and the clerk can award less if the fees are excessive in light of the complexity of the estate. Of course, if he has failed to do his duties, I would question whether he is entitled to any fee at all. Rather, the clerk would remove him and appoint someone else or a public administrator to wrap things up and the successor would receive the fee.

Leaving aside probate of the estate, whenever two or more people own land together, unless they can agree, any of the owners can bring what is called a partition action. In the partition, the court will see if the property can be divided and if it cannot be then it will be ordered to be sold and anyone can bid on it. The mortgages will have to be satisfied from the sale proceeds. Your brother will have to be reimbursed to the extent that he has paid more than his fair share. His fees for administering the estate are separate and would not be handled in partition. Any claims that you have against your brother for back rent would be the subject of a separate lawsuit. The problem is that you have done nothing for 3 years. There are time limits but if you delay much longer you will not be able to go back to the date of death.

I would make a copy of the entire estate file as well as a copy of the deeds and mortgages and go and consult with a probate litigation attorney who practices in the county where the estate is pending and/or the land is located. If probate is not an issue, then you need to see a real estate litigation attorney who practices in the county where the land is located regarding partition of the real property. One attorney can represent all of the other siblings other than your brother who lives in the home.

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Answered on 8/23/13, 5:03 pm

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