Q. My father died first, then my mother. They had identical wills, and my youngest brother was named executor, and I was the alternate. The will states that if the first executor cannot or will not carry out the duties of the will, then I would do it. The will states that within six months after her death, the home should be sold and the proceeds divided evenly between all three siblings. It’s now a year after the death, the third brother is occupying the house, and he can’t get a mortgage or buy me out of my share. Can I just assume executor duties and sell the home?
A. This sounds like it could turn into an ugly family fight.
Being named in the will doesn’t give you the automatic right to serve as executor.
If you are designated as successor executor in the will, two steps still must happen before you can take over the administration of the estate, said Yale Hauptman, an estate planning attorney with Hauptman and Hauptman in Livingston.
“Your brother, as the current executor, must either resign or he must be removed,” Hauptman said. “If you can get him to voluntarily step aside that would be the easiest, quickest and least expensive alternative, however, obviously he has to agree to it.”
The other option is to go to court and ask the probate judge to remove him.
For that to work, you must show the judge that he is refusing to take the action that is necessary and as directed by your mother’s will. If the judge is convinced, he or she can remove your brother by court order, Hauptman said.
After that, you need to be appointed by the surrogate as the new executor.
“If you are named as the alternate then this shouldn’t be a problem,” he said. “It is an administrative process by which you must visit the surrogate’s office and complete and sign the required paperwork.”
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