Inheritance Issues with Siblings. Disinheritance, Disagreements and Discord.

When a parent dies, inheritance issues with siblings sometimes arise, whether with a will or without a will. The usual inheritance issues are:

• The parent died with a will, and one sibling was cut out from the will or received a substantially smaller portion than the other siblings
• The parent died without a will, the siblings inherited the house in equal shares, and the siblings cannot agree on what to do with the property
• One of the siblings is in charge of the estate and the other siblings don’t like how he’s handling the estate
• One or more of the siblings received property while the parent was still alive

If you are having inheritance issues with siblings, we at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].

Disinherited from the will

The first inheritance issue with siblings is when one sibling is omitted from the parent’s will. This sibling will be unhappy about being disinherited and will most likely argue that the will is not valid. The disinherited sibling will argue that the parent signed the will under the undue influence of other siblings, making the will invalid.

Undue influence is an often-used ground for challenging a will. In undue influence, one would argue that the will does not reflect the testator’s intent because the testator was unable to refuse or too weak to resist the moral coercion of another person in making the testator sign the will. The events leading to undue influence usually occur in private between the influencer and the testator. Thus, undue influence is usually proven through circumstantial evidence.

To prove undue influence, one must show motive (that the undue influencer received something substantial from the will), opportunity to influence (that the undue influencer had enough access to the testator to exercise undue influence), and the actual exercise of undue influence.

An example of undue influence is when the influencer received a substantial amount in the will, was the one who engaged the attorney to prepare the will, chose the witnesses to the will, and made the testator sign when he was in the hospital or in a weakened physical state.

Generally, the disinherited sibling (the objectant to the will) has the burden of proof to prove undue influence. Fortunately, in New York, SCPA § 1404 allows potential objectants to gather documents relating to their grounds to contest the will, such as medical records, before even filing an objection. It allows the potential objectant the opportunity to see if he has enough evidence to support an objection. The results of SCPA § 1404 will show whether the potential objectant has a strong case and will aid in the negotiation of a compromise and settlement. Some costs of SCPA § 1404 discovery procedures can be borne by the estate.

We have handled inheritance issues with siblings, both from the side of the objectant-sibling and the side of the sibling who is the proponent of the will. We already know the arguments each side can raise, and we can help you if you have these inheritance issues.

Inheriting the house and disagreeing on what to do with the house

The second inheritance issue among siblings is one that occurs quite frequently: inheriting the house in equal shares and disagreeing on what to do with the house. Normally, a parent dies without a will with one sole asset, the house. The children are left to decide on what to do with the house.

First, the siblings should check whether the property is still subject to a mortgage. If it is, the siblings should decide on how they would share and pay the monthly mortgage payments if they decide to retain the property. They should also discuss how to pay the maintenance and upkeep of the property, including annual real property taxes. When siblings agree on these expenses, this agreement has to be written in order to avoid future conflicts.

Once the mortgage issue is decided, some options among siblings who have inherited real property include living in the house together, renovating to accommodate living space for two, renting it out and splitting the profits, selling and splitting the profits, or buying out the other siblings’ shares if they disagree.

Most often than not, inheritance issues with siblings regarding the house occur when one sibling wants to live in the property, while the other already has a house and wants to sell the property. When siblings disagree, one of them can file a partition suit in court. In this case, the court will decide what to do with the property. Usually, the court will just sell the property and split the proceeds among the siblings. For this reason, if one sibling really wants the property, he should just buy out the other sibling’s share. Otherwise, he would have to buy the property back at a sale or real estate listing.

If you cannot agree with your sibling on what to do with the house, we can help you file a partition suit.

Mishandling of the estate

Another common inheritance issue with siblings is when one sibling is appointed as administrator or executor, and the others are not happy with the way the estate is being managed.

When this happens, there are several remedies one can pursue. You can file a petition to compel your sibling to account, you can remove your sibling and have yourself appointed as successor, and/or you can file a petition to have your sibling surcharged.

If you’d like your sibling to still stay on as executor or administrator, you can just simply file a petition to compel him to account for estate funds. In this petition, you can object to certain items of expense that you feel are not proper.

However, if aside from that, you feel that your sibling has breached certain fiduciary duties as executor or administrator, you can also file (together with the petition to compel accounting) a petition to remove your sibling and have yourself appointed as successor fiduciary. SCPA §§ 711 and 719 provide for instances when you can remove your sibling as administrator or executor:

• When the fiduciary becomes ineligible or disqualified to act as fiduciary
• When the fiduciary wastes estate assets, makes unauthorized investments, or commits other misconduct
• When the fiduciary neglects or willfully refuses to obey court orders
• When the fiduciary obtained the appointment through misrepresentation
• When the terms of the will or order states that the fiduciary’s office ceases upon the occurrence of a contingency that has happened
• When the fiduciary fails to inform the court of a change of address
• When the fiduciary removes estate property from the state without court approval
• When the fiduciary has a history of substance abuse, dishonesty, improvidence, want of understanding, or is otherwise unfit for the execution of the office
• Some special circumstances applicable to guardians, testamentary trustees, lifetime trustees, and temporary administrators of absentees
• When the fiduciary fails to account as directed by the court
• When the fiduciary, who is cited to account, fails to appear before the court
• When the fiduciary absconds or conceals himself from the court
• When the fiduciary defaults in supplying estate information as required by court order
• When the will or trust nominating executor or trustee is declared invalid
• When the administrator fails to give a bond as required by court order
• When the fiduciary has been convicted of a felony or declared incompetent
• When the fiduciary commingles estate funds
• In cases of ancillary letters, when original letters have been revoked.

When there is proof that your sibling’s management of the estate has led to injury and damage, you can also file a petition to have that sibling surcharged. In a surcharge petition, you can make your sibling be liable for damages caused to the estate as a result of the mismanagement. This amount of surcharge can be paid by the sibling or taken from his share of the estate.

In the Matter of Shambo, 169 A.D.3d 1201 (2019), the Court affirmed the removal of the administrator when the administrator delayed in selling the real property, causing dissipation of assets. The court also affirmed the denial of reimbursement of some property expenses listed in the account and surcharged the administrator for the difference in the amount the real estate should have been sold for if such sale had not been unreasonably delayed.

Receiving property while parents are still alive

The last common inheritance issue with siblings is when one sibling receives property from the parents while the parents are still alive. This causes the other siblings to question the gift, possibly due to the perceived unfairness that they feel. The other siblings then raise the issue of whether their parent had the intention and capacity to make the lifetime gift.

In this case, SCPA § 2103 allows the personal representative (either the executor or administrator) to recover property given to third parties that should have been part of the estate. The executor or administrator can claim that the decedent lacked the intent and capacity to make the pre-death gift.

Proving lack of intent and capacity, however, can be difficult, as reflected in Estate of McHale, NY Slip Op 51877(U), September 28, 2012 Sur Ct, Erie County Howe. If, at the time of the gift, the decedent was sane and of a healthy mind, free from undue influence and moral coercion, it is hard to recover the property as part of estate assets.

Inheritance issues with siblings are common but can be resolved. If issues still persist, it’s always best to consult with a lawyer to know your options. If you are having inheritance issues with siblings, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].