Probate case: what rights does my husband have against his older brother?

My father in law passed away without a will and left with 1 house that’s paid off. He only has 2 sons, which are my husband and his older brother. My husband and I still live in the house but his brother is not. His brother found a lawyer to take care of the probate and his brother is also the administrator of the probate. He said to us that since he is in charge of the probate, he has the rights to sell the house or do WHATEVER he think fit for the situation right now. Is that true? then what rights does my husband have as another inheritor? And now that the house will be put on for sale very soon, what rights do we have? Can we restrict the hours and days of showing the house? And can we disagree to the selling if we think the price is too low?

Fullerton, CA -

Attorney Answers (4)

Daniel Mcgraw Little

Daniel Mcgraw Little

Probate Attorney - Chula Vista, CA
Answered

I would hope your brother-in-law would want to cooperate with your husband. As personal representative he owes your husband a fiduciary duty. Have you thought about buying the property using your husband's 50% share as a down payment? If so, you wouldn't have to move. You have the rights of reasonable notice regarding showing of the property. B-in-L must sell within 10% of the price established by the Probate Referee but you can still challenge for a legitimate reason.

No legal representation exists by virtue of this answer. It is recommended that you contact an attorney directly... more
Michael Raymond Daymude

Michael Raymond Daymude

Probate Attorney - Sherman Oaks, CA
Answered

then what rights does my husband have as another inheritor?

And now that the house will be put on for sale very soon, what rights do we have? Your husband is generally entitled to notice of proceedings which affect his rights in the estate. If he disagrees with how the estate is being administered, your husband has the ability to file a formal objection.

Can we restrict the hours and days of showing the house? You should come to an agreement regarding this so that you are not too inconvenienced but the property is thoroughly exposed to the market.

And can we disagree to the selling if we think the price is too low? Yes. The court probably must approve the sale and you will be given an opportunity to object.

I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for... more
Jonathan Craig Reed

Jonathan Craig Reed

Probate Attorney - Las Vegas, NV
Answered

Hopefully, proceeds from the sale of the house will not be required to pay off debts. Assuming that to be the case, your husband effectively owns half the house and his brother effectively owns half the house. The situation is similar to a situation in which two people own a house and they don't want to continue joint ownership except that the probate court will resolve the matter. If you and your husband are in position to offer half the value of the house for the brother's interest that would be a good solution.

Amy Anderson Howse

Amy Anderson Howse

Probate Attorney - Newport Beach, CA
Answered

I think your best course of action is to talk to your brother-in-law. Despite his seemingly hostile start to the probate administration, the most efficient and productive result will be achieved by making nice and trying to find a workable solution for both your husband and his brother.

Like another attorney suggested, you might able to use your 50% interest in the house to obtain financing to buy your brother out of his half of the house, provided your credit is good enough and you can show the lender that you have the ability to pay back the loan. Alternatively, your brother-in-law might agree to remain as a co-owner of the house as an investment property and let you pay him rent for half of the monthly rental value of the house.

You didn't say whether your brother-in-law was appointed with authority to act under the Independent Administration of Estates Act (IAEA). If he has that authority, he can take certain actions, such as selling the property, without first obtaining court approval. However, even in that case, he must notify your husband of any proposed sale and give your husband an opportunity to object. If your husband objects, that could delay the proposed sale of the property.

In short, it is in both your husband's and his brother's interest to work together if possible. It would likely save them both a substantial sum of money and promote family harmony.

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