Legal Question in Wills and Trusts in New York

Re: Share & Share Alike

You don't mention your mother. Based upon the assumption, that she predeceased your father, and that you and your two brothers will be your father's sole heirs, "share and share alike," each of you will inherit a one-third interest in your father's house.

You may choose to sell your share to the brother who lives there, or after the estate is settled, bring a partition action to force a sale.

This post is not legal advice and does not create an attorney-client relationship. It is a comment on the legal question posed by the poster and should not be relied upon in any way. All readers are advised to consult an attorney to address their specific legal concerns.

Re: Share & Share Alike

I will also presume your mother predeceased or there was a divorce and no mother has rights. I do not know who prepared the "Will" you reference, but I have never seen a Will that does not name an executor. Something is not right if no executor is named. This could prevent the Will from being admitted to probate when your father passes away. You do not say if your father has changed his official domicile from NY to FL, and this may be critical, as his domicile determines where any Will gets probated. Several suggestions and thoughts: (1) Have your father immediately do a Codicil or a new Will naming the executor. (2) Let him spell out what is to happen with the house when he dies. (3) While "share and share alike" will allow a majority of children to decide what happens with the house, you father may have reasons why he allowed the third child and his family to live there, rent free. Were they caring for him when he lived there? Is the brother needy and needed a place for him and his children? Is he married and a single parent? Does your father have other assets? If so, how does their value compare to the value of the house? If there was a valid purpose for allowing the brother and family live there, maybe something can be worked out with a different split of your father's assets (e.g., the house to him, other assets to the remaining children). (4) Rather than put the brother on the street, the new Will could give him the right to buy the house and equalize the split of all assets. Much more information is needed to provide a more accurate answer, but resolving the executor matter is most important. If you need assistance, contact me directly.