My grandfather died recently. He left a will that was written in 1991, but he adopted my siblings and I. We are his grandchildren biologically but legally we are his grandchildren. His biological children are my mother and uncle. My uncle was named the executor as my grandfather never updated the will. My uncle has chosen to sell my grandfather's home even though he stated in front of a lawyer that he wanted all of my grandfather's assets to stay within the family. Is there a way I Or my siblings can over ride his power? He is doing things such as getting appraisals without giving us any dates on when these are happening. I have also explicitly stated I wanted the house but I was hoping I could get the house without getting a mortage on it. Any help is appreciated.
If you and your siblings were adopted, you are grandfather's children. If the adoption occurred after the will was signed, you are "pretermitted children" and entitled to equal shares with your mother and uncle. It is important for an executor to obtain an appraisal of real property to establish values. It may be necessary to sell the house in order to divide the estate assets properly. Talk to uncle again - but he does have the power to sell the real property for fair market value.
You really need a probate lawyer, but here is the statute.
2015 ORS 112.405¹
Children born, adopted or conceived after execution of will
s used in this section, "pretermitted child" means a child of a testator who is born, adopted, or conceived as described in ORS 112.077 (Time of determining relationships) (3) or (4), after the execution of the will of the testator, who is neither provided for in the will nor in any way mentioned in the will and who survives the testator.
(2) If a testator has one or more children living when the testator executes a will and no provision is made in the will for one or more of the living children, a pretermitted child shall not take a share of the estate of the testator disposed of by the will.
(3) If a testator has one or more children living when the testator executes a will and provision is made in the will for one or more of the living children, a pretermitted child is entitled to share in the estate of the testator disposed of by the will as follows:
(a) The pretermitted child may share only in the portion of the estate devised to the living children by the will.
(b) The share of each pretermitted child shall be the total value of the portion of the estate devised to the living children by the will divided by the number of pretermitted children plus the number of living children for whom provision, other than nominal provision, is made in the will.
(c) To the extent feasible, the interest of a pretermitted child in the estate is of the same character, whether equitable or legal, as the interest the testator gave to the living children by the will.
(4) If a testator has no child living when the testator executes a will, a pretermitted child shall take a share of the estate as though the testator had died intestate, unless the will devised all or substantially all of the estate to the other parent of the pretermitted child and that other parent survives the testator and is entitled to take under the will.
(5) A pretermitted child may recover the share of the estate to which the child is entitled, as provided in this section, either from the other children under subsection (3) of this section or from the testamentary beneficiaries under subsection (4) of this section, ratably, out of the portions of the estate passing to those persons under the will. In abating the interests of those beneficiaries, the character of the testamentary plan adopted by the testator must be preserved so far as possible. [1969 c.591 §54; 2015 c.387 §21]
Responses on this website are not intended to constitute legal advice or the provision of legal services. By posting the Berlinger Law Firm, PLLC does not intend to solicit legal business from clients located in Texas or in states or jurisdictions where the Berlinger Law Firm, PLLC or its individual attorneys are not licensed or authorized to practice law.
You can't force the personal representative (that is what the executor is called in Oregon) to keep any estate property. If you want the house, you will likely need to buy it from the estate. Your uncle can't stop you from doing that. It's very important for you to consult with your own attorney to find out your rights and options before it's too late
This answer is being provided for informational purposes only under the AVVO system and its terms and conditions. This answer is based on general legal principles and is not intended for the purpose of providing specific legal advice regarding your question. Under no circumstances does this answer constitute the establishment of an attorney-client relationship. I am licensed to practice in Oregon. For legal advice relating to your specific situation, I strongly urge you to consult with an attorney in your area. NO COMMUNICATIONS WITH ME ARE TO BE CONSTRUED AS ARISING FROM AN ATTORNEY-CLIENT RELATIONSHIP AND NO ATTORNEY-CLIENT RELATIONSHIP WILL BE ESTABLISHED WITH ME UNLESS I HAVE EXPRESSLY AGREED TO UNDERTAKE YOUR REPRESENTATION, WHICH INCLUDES THE EXECUTION OF A FEE AGREEMENT AND RETAINER.
My condolences on your loss. I agree with my colleagues.
The Executor is the court appointed fiduciary to manage the estate including payment of any outstanding debts. The home is an asset of the estate and as such it is prudent to get appraisals to ensure that the home is not sold below its value. As Ms. Selvig pointed out, you could purchase the home from the estate.
In order to protect your rights I also suggest that you speak with an attorney specializing in probate.
All the best to you and your family
This answer made available by the lawyer for educational purposes only to give you general information and a general understanding, not to provide specific legal advice. You understand that there is no attorney client relationship between you and the attorney. The site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline