Legal Question in Wills and Trusts in Pennsylvania

My mother passed away 3 months ago. Myself and two brothers are the beneficiaries of the estate which consists of a home fully paid and no outstanding debts. One of my brothers is the executor. He lived with my mother and continues to live in the home. He plans to stay there and move my other brother and his wife in the home. The will and estate is in probate.They have no intentions of selling the home and settling the estate as this is their plan to live there the rest of their lives. Do they get to live there rent free and not settle the estate?

My one brother is executor of the will and.

Asked on 1/15/16, 12:18 pm

3 Answers from Attorneys

If there is a valid will, it should be followed and can be enforced by law. Either your brother(s) can buy your share of the house from you or you can force a sale to obtain your share. I strongly encourage you to contact an attorney as soon as possible. Feel free to contact me if you wish.

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Answered on 1/15/16, 12:23 pm

It depends on what the will says. You indicate you are beneficiary but do not say what you get. Is it 1/3rd of the house? If its a piece of the house then no, your brothers do not live there rent free. They have to buy out your share and give tyou a piece of the rental value minus your share of taxes, upkeep and insurance. I agree with Attornewy Polsky. You need to see a lawyer NOW because things already are not being handled properly. You will need a probate litigation attorney who practices in the county/state where the estate for your mother is probated.

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Answered on 1/15/16, 2:26 pm
ANDREA G. TILLIS Law Offices of Andrea G. Tillis

Please accept my sincerest condolences on the loss of your mother.

Whether or not your siblings can legally occupy the property will depend on what your late mother provided in her will.

Generally a Testator (male decedent, leaving a will) or a Testatrix (female decedent, leaving a will) provides that any real property they own at the time of their demise should be sold and the proceeds to be divided equally among all the children. But, again, it is totally within the decedent�s discretion.

Occasionally, where one of the decedent�s children took care of an elderly parent, the parent might leave more to that child than what they leave to the other children. But, again, it is totally within the decedent�s discretion.

The Pennsylvania Orphans� Court gives a great deal of weight to a decedent�s will because they say that the decedent is �speaking from the grave� and the Orphans� Court will not alter a decedent�s last wishes unless a beneficiary contests the will and proves that the decedent was subjected to �undue influence�, or was not of sound mind, and therefore, could not legally make a valid and enforceable will.

An individual who is named as the executor in a decedent�s will, does not have any greater or any superior rights to any of property simply because he has been named executor. An executor�s primary responsibility is to see that the estate left by a decedent is given to the beneficiaries which the decedent has named in the will, nothing more, nothing less.

So, if your late mother did not make a specific bequest of the property in question to your brother, then he does not have the right to live there rent free, nor does he have the right to permit anybody else to move in and live rent free. If your brother wishes to remain in the property, he must pay you the �fair rental value� of the property. This rule will also apply to your other brother whom the executor plans to allow to live there with his wife, rent free. He, too will be required to pay you the fair rental value of that portion of the property which he and his wife will occupy. If your brother who is acting as executor does otherwise, then he will be hel liable for breaching his fiduciary duty to you as a beneficiary.

In order to avoid conflicts and misunderstandings between all the siblings, there are two (2) options. Your brother, acting in his capacity as executor can engage a licensed real estate agent to determine what the fair rental value of the property is, then draft a lease for both brothers, pursuant to which they will occupy the property and pay over to you on the first day of each month the amount which the real estate agent determined is the fair rental value of the property. If your brothers do not agree to this, then the second option is to sell the property and divide the proceeds equally among all the siblings.

If your brother who is acting as the executor does not agree to this, then you will have to retain the services of an attorney (who knows what they are doing). I would not recommend attempting to do this on your own because there are many pitfalls along the way and one wrong step would significantly affect your rights as a beneficiary. The Attorney you retain should promptly file a Petition with the Orphans� Court, alleging that the executor has breached his fiduciary duty to you, as a beneficiary, and also,

(1) Ask the Orphans� Court Judge to remove him as executor;

(2) Enter an Order appointing a Substitute Executor;

(3) Order the Substitute Executor to immediately list the property with a reputable and licensed real estate agent for sale; and

(4) Lastly, when the property is sold, the proceeds to be divided equally among all the siblings. If your brother refuses to follow the Order entered by the Orphans� Court Judge, then you must file a Petition for Contempt in which you ask the Judge to hold your brother in Contempt of Court. If this becomes necessary, your Petition for Contempt should also request that the Order signed by the Judge should contain a directive that your brother pay his own Attorneys� fees and not use, or deplete any assets of the estate for payment of his legal fees.

I recommend that this be done as quickly as possible, and before your other brother and his wife move into the property, so that you will not have to be involved with eviction proceedings, in the event that your brothers refuse to vacate the property.

If you need clarification, or assistance in implementing any of the steps which I have outlined above, I am available for In-Office consultations.

Kindest Regards,

ANDREA G. TILLIS 610-259-2724

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Answered on 1/16/16, 7:45 pm

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