My mother died in May 2012 and left a will with my sister as the Executor. Her estate includes her house, her car, a savings account and her life ins policy. The house was left to my sister and I equally. My sister does not want t file probate yet and so everything is in limbo. I would like to move this along and get it taken care of. What rights do I have as a co-heir to get her to file he paperwork and get probate started?
As a beneficiary of the estate, you have a right to open the probate administration by filing a petition for formal administration. This will cause a hearing to be scheduled to appoint a personal representative. The fact that your sister was nominated as PR pursuant to the will means that she has priority to be appointed as personal representative/executor. The issue you face is not whether you can open the estate but whether your sister will show up at the initial hearing to accept her appointment as PR. If she does not show up then you may be able to accept the role as PR. Either way the estate is now open and a PR has an obligation and duty to administer the estate.
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There's not time limit, but delay can add cost and complication to the probate proceeding in some cases. A person who is named in the will to serve as personal representative can't hold up the entire process by declining to serve. If that person won't serve, then any interested person (which would include you as a beneficiary of the estate) can file to admit the will to probate. You should contact a Florida probate attorney to get the process started.
Don't take anything written here as legal advice.I am happy to offer my thoughts free of charge, and I would welcome the opportunity to speak with you about representing you. Please be aware, though, that at this point we have not established an attorney-client relationship. An attorney client relationship requires me to agree in writing to represent you. Unless that happens, you shouldn’t take anything I say to be legal advice or make any decisions based on it.
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I do not handle probate matters, and there is an expression that "a little bit of knowledge is a dangerous thing", but I will take that risk when I point out that if your mother lived in her house that that property is not part of the estate. It passes "outside" the estate to your mother's heirs at law, which is you and your sister. That means that IF your mother had debt when she passed that creditors could not force the property to be sold.
As my colleagues have pointed it, you can start the ball rolling by petitioning the court to be appointed personal representative. If your sister asserts her priority as the named personal representative in the will, then likely she will be appointed, but she can not drag her heels; if she does not do her job you can then petition the Court to remove her as Personal Representative and appoint some one else, presumably yourself.
I hope you found this response to be of assistance. This response shall not be considered the rendering of legal advise but instead a general response to a general question. While Avvo is a wonderful resource, nothing can be a substitute for an in-depth consultation with an attorney in the jurisdiction in which the law is to be applied. This response shall not be deemed to create an attorney-client relationship, nor shall it create an obligation on the part of the attorney to respond to further inquiry from the questioner.
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I disagree with my colleagues in some respects because there may be times that a delay in administration actually saves times and money. After two years, an estate can be probate through a summary administration that reduces the cost of the filing fee, the pleadings that must be filed, and the notices that must be published. If the two of you are the only heirs (devisees) of the estate, you are going to have to work together as co-owners of the house or co-sellers of the house. There may be some benefit to the delay she's seeking.
Typically a life insurance policy would not be part of an estate. Did your mother not name a beneficiary? Similarly, the savings account may have a beneficiary named that would allow the proceeds of the account to be distributed outside of probate. You can make a general inquiry on those two accounts with a death certificate. If you are named, the distribution can occur swiftly regardless of the status of the estate.
The car could be a problem if probate is not initiated in a timely fashion as the registration will expire at your mother's next birthday and an unregistered car can be a nightmare.
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Estate Planning Attorney
In addition to the posted answers-you should hire an attorney to write a letter demanding the will be filed and give her a time line to file. The Florida statutes cite a 10 day time limit.
If she fails to file after your time line-you have a stronger argument to be appointed yourself as suggested..
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
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