How do I get half of everything when brother (executor) is already taking personel property?

1 answer | Last updated: Sep 14, 2017
A fellow caregiver asked...

My mom has cancer with only a couple months left to live. I fortunately am able to stay with her and help care for her. My brother, who is older, is the executor of my moms will that states that everything is to be divided 50/50 between the two of us. My mom has not even died and he and his wife have already started taking personel items from the home as well as telling his son (my mom's grandson) that he can have all of the furniture (some of which is pricey) for is college apartment. If everything is to be divided. 50/50, how can I keep them from taking everything? Should they have to pay me my half for the items? I wished we could just have an estate sale and divide the money. But as executor can he just take whatever and I just get what is left? As someone who is just a beneficiary, can I request for an estate sale to happen?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

It must feel as if your brother is stealing by making off with your mom's property, and even encouraging his son to take freely, too. And unless there is some document giving him authority to dispose of your mom's property during her lifetime, such as a trust or specially worded power of attorney for finances, then he is stealing.

While many people are confused about an executor's real rights and responsibilities, one fact remains: Executors are not empowered to act until the person whose will names them dies.

You will need to take action to keep your brother from emptying your mom's house. It may be enough to stop him if you let him know he's not legally authorized to dispose of her property. But maybe not.

Chances are better that you will need to involve another person whose authority your brother respects to step in and help right the wrongs that are happening. A good start may be to contact the lawyer who wrote your mother's will. He or she should be willing to meet briefly with you and your brother"”and explain the legalities of the situation to him. If your brother has already taken things of value, then the lawyer may also be able to help set up an accounting system for that"”in which those items are valued and deducted from your brother's eventual share of the property, or put back in place for now.

A legal meeting may also be a good time to air other realities about your mother's end-of-life situation. If she is receiving costly medical care, for example, you and your brother should have a clear understanding of how that care is being paid for"”and by whom.

A lawyer comes first to mind as the "outside voice of reason" because there are clear legal controls barring what your brother appears to be doing. However, if you can think of someone else who might be appropriate"”a relative or neighbor who has good business sense, a family friend with legal training, a clergy person with practical sense"”then consider asking him or her to step in and help.

A final bit of advice: Act quickly.