When administering an estate for a parent who has passed away, tense family dynamics developed over the years between siblings can often greatly complicate the process during what is already a time of grieving for all! The question of "Can I get my co-executor sister to abide by father's will" is a common situation that comes about when co-executors are not on the same page. In theory, when both children are beneficiaries and also executors on an estate, it should be a simple result. Sell the house and split the proceeds as the father instructed in his will. 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 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 may be able to 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 the dissatisfied child doesn’t contest the will — or if she does contest it but fails — she’s still 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. it pays to work with an experienced estate planning attorney. Unfortunately, these type of disputes between heir/executors are becoming more and more common. One solution is to name an "independent fiduciary". In some cases, clients use a local bank's trust department. However, as banks have consolidated, your "local" trustee might be hours, or even states, away!
With that point in mind, Mr. Haley has studied and earned a couple of certifications: Accredited Trust & Financial Advisor (ATFA) and Certified Independent Trustee (MCIT). Often, he serves as fiduciary for our clients when an independent executor/trustee/agent is needed. Book a call with us to learn how we can help, and to schedule an appointment. In contemplating your estate planning for the future, if you are worried about how well your children acting as your executors on the estate will truly work together once you pass away, and they are both faced with questions like "how can I get my co-executor sister to abide by father’s will?" then it pays to talk to a certified elder law attorney ahead of time for options, solutions and things to consider for the future.
Reference: nj.com (Aug. 9, 2022) “I’m fighting with my sibling about an inheritance. What can I do?”