A: Sorry to say, but it depends on your particular facts and circumstances. If your brother has already been confirmed as the executor of the estate, he has a duty to marshal the assets of the estate and get them ready for sale or distribution according to your father's Will or by intestacy. That means taking possession of the house and getting it ready for sale or distribution. I'm assuming you don't have a right to stay in the house pursuant to a written agreement with your father or a right created under your father's Will. If your brother has not been confirmed as the executor of the estate, then he has no legal right to evict you. If he has been confirmed as the executor of the estate and you refuse to leave, you may be required to pay rent to the estate for your continued use and occupancy of the property dating back to the date of death of your father or perhaps the date that letters testamentary were issued to your brother. If you refuse to leave the house, your brother would have the right to evict you but only with proper notice and court approval. How much notice is required? That really depends on your particular situation. Eviction normally requires 60 days written notice, but there are other avenues available to your brother if he needs to evict you and each path has its own notice requirements. You really need to talk to your brother and reach an agreement on when you intend to move out.
A: I agree with Gina. It sounds like you will need to file a petition for probate and ask for the appointment of an estate administrator before you try to refinance the property, and the six of you should be able to agree on whatever you want provided it’s in writing and your settlement agreement is approved by the court. A qualified disclaimer might be an option, and an assignment of beneficial interest Is another option. If you want to pass along dad’s low tax base for property tax purposes, you should seek the advice of a probate attorney. There’s a right way to do it and a wrong way, and the difference could be in the tens of thousands of dollars. Give me a call and perhaps I can help. 408-985-9918
A: I agree with John. Court may not be be necessary. Talk to an estate planning lawyer about the possibility of a qualified disclaimer, or consider a straight gift from your sister after she collects the money from the trust, or perhaps a simple assignment by her of a half share of the trust out of her share of the trust. Good luck!