Legal Question in Wills and Trusts in California
My Mother passed away and in in her will she left her estate to be shared between me and my brother. My brother lives in my Mothers estate and has become very difficult to deal with since my mother died. He has a sense of entitlement. (He lives there so it should be his...not!)
So I find out my Aunt was the orignal executor--but she is in her 80's and declined to serve. She knows what my Mother would want and thats for me to be the executor. My brother was living with my mother prior to her passing for yrs since he didn't have to pay rent..she owned her home. He took advantage of her like he's trying to do to me now. My brother doesn't want to move out of my Mom's estate obviously because all his stuff is there. So he is fighting me on everything! Does it hold any weight in probate court that my Aunt is nominating me as executor and not him should he show up in court to contest me as executor? Is there any chance they could nominate him? My Aunt is against it and she was the orignal executor...she knows my Mothers wishes. I'm battling cancer but so far doing alright...I was concerned that he and his lawyer might try to use my cancer battle against me? So does he stand a chance of being nominated executor should he contest my nomination? Thank YOU!
2 Answers from Attorneys
The first thing that the Court will look at in determining who should serve as the executor is who is named in your Mother's will to serve is your Aunt declines to do so. If you are named next than, absent good facts, the Court will likely appoint you. On the other hand, if you are not named next the Court will need very good facts to appoint you in place of the person named by your Mother. If you would like our assistance, please do not hesitate to call us.
Jon Reich
310.478.2541
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If your aunt is unwilling to serve the Trust may name a successor trustee. If it does not you can petition the Court to appoint a successor trustee. You can request that the Court appoint you. If your brother opposed your being appointed as trustee you can request a private professional be appointed.
If your brother continues to live in the house rent free I would want to see a copy of the Trust documents and determine whether he has a right to stay there according to the Trust. If not, the successor Trustee should take action to have him either pay rent or have him removed.
The Trust documents will determine your mother's intent regarding the property, whether it is to be sold and proceeds split, or whether he can remain and pay rent, etc.
Let me know if you want to discuss the matter.
J. Caleb Donner
DONNER & DONNER
LEGAL WARRRIORS�
email: [email protected]
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This reply constitutes legal information for education purposes and does NOT constitute legal advice nor establish an attorney-client relationship. We will only represent you based on a written retainer agreement. Therefore, you should contact this office to discuss representation if you do want legal advice/representation.
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