09 Aug I’m fighting with my sibling about an inheritance. What can I do?

Q. My father left his house to me and my sister, but 75% is supposed to be for me and 25% for her. Because she feels that was unfair, she’s fighting with me about selling the house. We are both executors and no one lives in the house, and no one wants to, and keeping it just costs us money each month. How can I break this log jam?
— Concerned

A. We’re sorry to hear about the loss of your father, and that you’re fighting with your sister, too.

Your situation is an example of the age-old estate planning issue of treating heirs equally versus equitably.

There’s a lot to consider here.

An executor is not permitted to act in his or her own personal interest, said Andrew Novick, a certified financial planner and estate planning attorney with The Investment Connection and Brookner Law Offices in Bridgewater.

Instead, the executor is required to act in the best interest of the estate. This is called a “fiduciary duty.”

“Thus, as joint executors, you and your sister owe a fiduciary duty to implement the terms laid out in your father’s will unless the will is successfully contested,” he said.

When real estate is left to named heirs, the executor can either sell the property and divide the proceeds as specified in the will, or distribute the house “in kind,” which means that the beneficiaries would become co-owners.

If the beneficiaries do not want to be co-owners, the best solution is to sell the property, Novick said.

“Although neither of you want to keep the home, it is also possible for one of you to buy out the other’s share based on a fair market value of the house,” he said. “If you and your sister cannot resolve the dispute amicably, the courts will need to be involved.”

Your sister could file a lawsuit contesting the will. Generally speaking, the deadline to do this is four months after the will is probated. If your sister misses this deadline, your dad’s will should stand, Novick said.

“Even if your sister does contest the will within the required time period, it will be difficult for her to succeed,” Novick said. “The two most common grounds to contest a will are to show that the testator was not competent to sign it, or to show that somebody exerted undue influence over the testator.”

In both cases, the contest must be supported by clear and convincing evidence. A large majority of will contests fail to clear this high bar, Novick said.

If your sister does not contest the will — or if she does contest it, but fails — she is legally obligated to put aside her personal desires and comply with her fiduciary duty to implement the will.

If she refuses to do so, you can ask the court for help resolving the matter. This would involve filing a complaint seeking to remove your sister as co-executor and name you as the sole executor, Novick said.

“You would ask the court to enter an order, called an `order to show cause,’ setting deadlines for your sister to defend her conduct and oppose the relief you request,” he said. “You are not required to have an attorney for this process, but it will be difficult to navigate the process without one.”

You can ask the county surrogate’s staff to assist with procedural issues, but they are not allowed to give you legal advice, Novick said.

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This story was originally published on Aug. 9, 2022.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.