My mom has dementia. My brother is legal guardian, lives in her home/ free/ clear.
There is a court appt lawyer Conservator. Mom had her will drawn up several years
before she became ill. She has myself listed as Executrix. My brother feels the
Will was drawn up under duress. Although, both of us were there at the appt when
mom met w/ her lawyer. Mom is now in late-stage dementia & under Hospice care.
My brother is "hell-bent" to Contest the Will. Mom name is the only name on the house deed. I am to decide what to do with the house, if the siblings cannot agree. When a Will
is contested, what does the Judge look for w/ being unfit to be the Executor?
How do I get my brother out of the house House during it being contested? And who
pays for the continued upkeep of the house
While I would agree with the other two responses, it has been my experience in Michigan probate that, even if the Will contest fails, if your brother objects to your appointment, and the two of you cannot agree, that the judge will likely appoint a public administrator to handle the probate administration. That might result in your brother being allowed to stay in the house during probate, or it might result in the PA kicking him out. Either way, it could be outside of your control.
I would agree that it sounds like proving undue influence is going to be tough, under the circumstances. If the Will was drawn up by a lawyer and proper protocols were observed, I would say his chances are very slim. Even so, if he is able to have you removed or prevent you from serving, then he will have accomplished a large part of his objective. You are going to need a skilled litigator to assist you with this.
Best of luck to you!
*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.
Proving duress is hard to do, especially if you were both present. Ask the lawyer who drafted the will whether he thinks it was made under duress. Your brother is going to have to produce strong evidence and facts showing duress and this heavy burden is on him to overturn the will. These are usually hard cases to win.
Your fitness as executor is another story. You can be removed for cause if you fail to honor your fiduciary duties as executor or if other factors are present. For removal for cause, please see my article entitled Pennsylvania Probate: Removal of Personal Representative Under PA Estates and Fiduciary Code at the following link: http://www.sjfpc.com/Probate_Removal_Executor_Trustee_PA_Probate_law.html Even though this relates to PA law most states have similar rules.
You would remove him by an eviction procedure.
The upkeep of the house is paid by the estate.
You really should retain estate counsel in light of all of the above. For a sense of what is involved in administering an estate in most states, please see the following two articles: Estate & Probate Administration: Do Not Try This On Your Own at http://www.sjfpc.com/page1.html and Pennsylvania Probate & Estate Administration: Executor Duties at http://www.sjfpc.com/pennsylvania_probate_estate__administration_duties_of_executor_and_administrator.html
Hope this helps.
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Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is [email protected] , his website for more tax, estate and business articles is www.sjfpc.com. and his blog is
LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is [email protected] , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.
Well, I would say that Mr. Fromm gave you a very good answer!
Needless to say, you will need to hire an attorney to assist you when your mom passes. A good attorney will make life much easier for you. I would suggest that you look to naela.org or the avvo website for probate attorneys located in your area.
Legal Disclaimer: Paul A. Smolinski is licensed to practice law in the State of Illinois only, and as such, his answers to AVVO inquiries are based on his understanding of Illinois law only. His answers are for general information about perceived legal issues within this question only and no response to any posted inquiry should be deemed to extend any right of confidentiality between you and Mr. Smolinski, to constitute legal advice, or create an attorney/client or other contractual relationship. An attorney/client relationship is formed only by specific agreement including an evaluation of the specific legal problem and review of all the facts and documents at issue. We try to insure the accuracy of this information, but we cannot guarantee its accuracy. The reader should never assume that this information applies to his or her specific situation or constitutes legal advice. Therefore, please consult competent counsel that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.
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