Submitted by Kent on Thu, 02/03/2011 - 08:42
My mother died 5 months ago and now my brother is taking care of the estate. The house is being rented to a couple on a month to month basis. My brother, me and my sister are the only three heirs so we will get the house when the estate is finished up. So my brother and I don't really get along and I was wondering what he was doing with the rent he collecting for the house? Does he have to spend the money on the house or can he keep some of it? If I ask him and he wont tell me then what should I do?
Rent on House
Your situation is very common – probably 25% of the posts on this site have a similar theme, so you might want to read some of the earlier posts. I am not sure why executors get appointed and immediately stop communicating with the beneficiaries. It could have something to do with the amount of work that they have to do for the estate, or the fact that they sometimes feel like everyone is looking over their shoulder ("arm-chair executors" as it were), but here is the point: the probate process is supposed to be open. There should be good communication between the person appointed by the Probate Court to act as fiduciary, and those people that the fiduciary is working to protect. That means no secrets, and no surprises.
I always tell my executors that they work for the beneficiaries, and therefore need to treat them as they would their employer. OK, I will get off my soap box. The legally correct answer might surprise you (and no doubt your brother's attorney): unless the Will provides otherwise, an executor has no power over the real estate of the decedent. I know that runs counter to what you understand the executors role to be. But under MA law, an executor or administrator may be able to sell the real estate to pay creditors of the estate, but they do not technically have the power to rent the property.
That said, pretty much every estate in your situation ends up doing exactly what your family is doing. Maybe it is because it is just easier for one person to address the real estate issues. So in your case, your brother is still acting in his fiduciary capacity with regard to the real estate. And that means that he will have to account for the rental income. My guess is that he will put the rent into the estate bank account, and just pay the estate expenses. So you will have final approval over your brother’s actions as executor because he is obligated to prepare and file an Account with the Probate Court. The Account is a very detailed report that will reflect every dollar received by the estate, and every dollar paid out of the estate. If he has done something wrong, you can object to the Account.
I would recommend that you continue your efforts to communicate with your brother, maybe consider a written request for information. If the Will authorizes him the control the real estate then he will have to include that activity on his Account, and if the Will does not authorize his activity, then that is something that needs to be address now, and not later. Good luck.
Attorney Peter Bernardin