When the time comes, I will get a lawyer--
July 26, 2013 7:57 PM   Subscribe

but right now, I just need some practical advice from someone who has experienced this. My family is estranged from my mentally ill homeless sibling (SiblingA. My father is quite old and ill, he is leaving his estate to my SiblingB and me. I am the executor.

My father has left my estranged sibling (SiblingA) out of the of the will and has said SiblingA is not to get anything. SiblingB is terrified of SiblingA and suggests we pay SiblingA off to keep him away from us. Since I have dealt with SiblingA for most of my life, I know this will not work, as does my father.

My understanding is that only the executor needs to read the will. It is up to the executor as to how to execute the will. There is not a whole lot of wealth or property, about $100,000 in total, so it is not like we are dealing with a vast estate. The property will be left to me and SiblingB as tenancy in common, which leaves SiblingA with no rights, this is my father's wish.

Can anyone recommend a book that could help me understand this? Has anyone who has been an executor give me some ideas?
posted by wandering_not_lost to Law & Government (7 answers total) 2 users marked this as a favorite
What is your question, exactly? Your father is leaving the money to you and to SiblingB, so the two of you are getting it, and SiblingA isn't. Do you want to know whether SiblingA has legal grounds to challenge the will? Do you have a question about the ethics of the situation, and whether you have some moral obligation to SiblingA? Is there some concern about physical safety?
posted by alms at 8:38 PM on July 26, 2013

It would be helpful to know where you are, as I suspect the practicalities of executing a will are going to be different in different places.

I don't know what the law is where you are, but in some jurisdictions basically any family member can challenge a will if they have been "cut out" of it. I would recommend your father see a lawyer (if he hasn't already) for advice about what rights SiblingA may have in relation to his estate. It might be that SiblingA has no rights, and you'll be fine. However, it might also be that changing the will could head off any potential issues - then obviously this needs to be done now, as it'll be too late once you're executing the will.
posted by pianissimo at 8:47 PM on July 26, 2013 [2 favorites]

Can you get a court order to keep A away from you ,B and your father? My mother had to do this when she became conservator for her mother and stepfather and my coke head uncle began making threats.
posted by brujita at 9:02 PM on July 26, 2013

If you're concerned about whether SiblingA could challenge the will, it really will depend on your jurisdiction. This is not legal advice; you'll need to consult an attorney in your jurisdiction experienced in probate matters, if you want a definitive answer to this question.

In my jurisdiction, the surefire way to ensure that the disinherited child of a parent could not successfully challenge the parent's will (a challenge can always be brought) would be, if the will doesn't already specifically say that the child takes nothing, to have the parent execute a codicil, which is a writing supplementary to the will, stating specifically that it is the parent's intent that the child take nothing. Moreover, the parent would also want to take steps to ensure that the will would be self-proving, which would eliminate the need for testimony as to the will's validity before it could be admitted to probate. In my jurisdiction.

But I'm not sure that this is your question. If SiblingB is homeless and mentally ill, does SiblingB even have the resources to bring such a challenge?

The duties of an executor vary from jurisdiction to jurisdiction, but here are some general observations about being an executor. An executor is the personal, legal representative of the estate of the deceased person. Basically, when a person dies, the estate of the deceased must be distributed to the people who are legally entitled to receive whatever parts of it were left to them. The executor is often also the person who files the lawsuit seeking to have the will admitted to probate court. The point of probate is to make sure that any titled property passes to the beneficiaries under the will with good title, meaning, for example, that there won't be problems if the person who inherits a piece of land wants to sell the land later. Also, if there are any claims against the deceased person's estate, the executor of the estate deals with rounding them up and paying them, etc.

After a will is admitted to probate, the executor is required to notify creditors, collect the assets of the estate, pay creditors, distribute the assets to beneficiaries, and file things with the court to show that all those steps occurred. However, under certain circumstances, and particularly if there aren't a lot of debts against the estate and the amount of assets is relatively low, the executor can file certain special requests with the court to relieve him of some of the more burdensome accounting and filing requirements.

I hope this helps. Think of being the executor as being the person who makes sure all ducks are in a row with respect to all the assets and liabilities the decedent owned. Your lawyer will help you navigate the process.
posted by sevensnowflakes at 10:12 PM on July 26, 2013 [1 favorite]

what sevensnowlakes said. IAAL, IANYL.

a will aimed at cutting out someone out should do two things: it must specifically disinherit the person cut out, and should be self-proving.
posted by jpe at 4:45 AM on July 27, 2013

You and your father might want to talk to an estate lawyer about establishing a living trust, instead of a will (or rather, in addition to the will). This will save probate time and costs, and will keep the contents of the transaction entirely private. Probate is not private. This could perhaps head off SiblingA's knowledge of the will, and ability to stall distribution of the estate. IANYL, TINLA.
posted by Capri at 7:59 AM on July 27, 2013

My understanding is that only the executor needs to read the will. It is up to the executor as to how to execute the will.

I am an executor under a much less touchy set of circumstances and here are a few things that are applicable in my circumstance that may or may not be applicable in yours. I read a nolo-type book about being an executor (this one?) which was helpful and it was also very helpful to talk this over both with my lawyer (for the estate) but also just friends who were lawyers to get an idea of what wills and trusts in general are like. Just to highlight a few things

1. the will, if filed, is a public document and other people could access it. Trusts are private, this is why people often have trusts.
2. the executor has a legal obligation to execute the will which will be something that all interested parties will want to make sure happens accurately. So in the will I am handling, it's me and my sister who inherit everything. We are friends and agree on everything. If not, she could make this whole situation into sort of a pain for me just making sure I'm fulfilling my legal obligations as executor. Other people have the right to know that they are not in the will, if they want. This has not come up with me, might for you.
3. Make sure the will is specific about either leaving out SiblingA or only mentioning you and your other sibling. There is often a lot of language in will that is just sort of hand-wavey "To my kids" and you need to make sure that's not in there
4. The will is a lot of other stuff, as sevensnowflakes says, paying up old bills and creditors, disposing of assets and property, that sort of thing. Executorship is a job, a little bit

Best of luck moving forward. I see no reason to "pay off" SiblingA for any reason unless there is something I am missing here.
posted by jessamyn at 9:51 PM on July 27, 2013

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