Navigating the Probate Process With Your Siblings
The death of a parent is a tragic event, and there may be complicated feelings wrapped up in the aftermath. These situations become even more complicated when they involve multiple siblings vying for their own interests during the probate process.
Many probate proceedings go off without a hitch and with all parties willing to seek an amicable agreement. But, sometimes, the parties will disagree with how probate is being handled. This is especially common among siblings who just lost a parent. Other times, one sibling will try to make decisions outside of the probate process. These scenarios happen most often when a sibling resides in a property owned by the parent, or when the sibling shares ownership of something like a business or home residence.
In any situation, the important thing for a surviving family member to do is to refer to an attorney for guidance. The law has specific intentions for how probate is supposed to be carried out, and when siblings disregard or try to work outside the process, the other siblings can often petition the court to halt such actions. There are also legal remedies for issues that can exist when one sibling goes against the wishes of their parent and the best interests of the estate.
Overall, the goal of navigating probate with your siblings should be to know how the law is carried out and to negotiate where the law provides no specific remedy. Mediation can help the parties form a fair agreement while satisfying all of the obligations expected by the will and the process of probate itself.
Who Should Be Appointed Personal Representative Among Siblings?
Generally speaking, probate courts greatly prefer for one party to step forward and designate themself as the personal representative of the estate.
Contrary to popular belief, the testator (person who drafts their will) can only state their preference for a personal representative — sometimes called an executor — not designate them outright. Technically, any person can petition to become the personal representative so long as they have a verifiable interest in the estate’s management. A creditor can become the personal representative, for example, when no other interested party has emerged.
When multiple people petition to become the personal representative, the court will usually request that they come to an agreement before probate can proceed. It is possible for multiple individuals to serve in the role in a form of partnership, but it generally works best when all siblings defer to one individual.
If the testator did not state a preference among siblings and there is disagreement, it may be possible for the court to intervene and select the most appropriate individual. Again, though, the best option is for all parties to negotiate together since court hearings can consume considerable time and cost.
What Do I Do if a Sibling Wants to Challenge the Will?
Contesting a will is within a sibling’s right, but they must have sound reasoning and evidence to back up their assertion that the will should be declared invalid.
One common challenge to a will is that the testator lacked capacity because of their mental state or because of undue influence. The sibling may also say that there is a more recent version of the will that supersedes the version expected to enter probate.
When there is a contest of the will, the case moves into the district court and will involve multiple hearings. Again — and this may sound like a common theme — the most direct way to resolve such disagreements in many instances is not through litigation but negotiation. If the contesting sibling’s feelings and desire for certain property or privileges are satisfied, many times they will drop their contest. Or, if the sibling’s accusations seem justified, the current will and any competing versions can be declared invalid, and the case may proceed instead to intestate succession where all siblings divide property equally.
Know that there may not be a “perfect” solution that does not involve concessions, but if the goal is to expedite probate and distribute the property as soon as possible, all sides may need to compromise.
What Can I Do if I Feel My Sibling Exerted Undue Influence?
Review the types of undue influence and major factors needed to prove undue influence before moving forward with your claim. You can then speak to an undue influence attorney familiar with New Mexico laws and who practices in your district.
When making such a claim, it is important to act fast to begin the case and to have evidence sufficient to establish basic facts about the case. Being able to document any past abuses or signs of the sibling’s control over the parent, for instance, can be beneficial to asserting your contested claim.
What Do I Do if I Feel a Sibling Is Mismanaging the Estate?
You can seek a breach of fiduciary claim, and you may be able to get the sibling removed as the personal representative if the court feels they are unable to act in the interests of the estate.
What Do I Do if a Sibling Currently Has Joint Ownership of Something or Resides in a Property That Should Be Divided?
Current realities can dislodge the best-laid plans of the testator, especially if they have not updated their will regularly.
In many cases, property owned in joint tenancy is automatically transferred to the remaining owners upon the co-owner’s death. The same can occur with a business or some other community-based holding. However, if the intention of the will states that the property should be divided rather than transferred wholesale, the remaining siblings have the option to enforce the will in court.
A similar sort of situation can happen when a sibling lived in the home of the parent at the time of their death. Protections exist for the current tenant of the property, and it may take a full-on eviction proceeding to get the sibling out of the property — which can usually only take place once probate is closed and ownership is assumed.
In any of these scenarios, the most common solution is to liquidate the property or business and divide the proceedings appropriately. Or, the person who wishes to hold the property can “buy out” the other siblings in order to retain their wholesale ownership.
Once more, negotiation is the more effective and direct tactic. A sibling who wishes to compel the other sibling to take a certain action is usually in a better position to offer that sibling something they want, rather than being in a position to get the court to intervene in a timely and decisive manner.
In any case, it can greatly benefit the siblings to speak to an experienced attorney. A New Mexico probate attorney can research the law and relevant case history to help guide everyone towards a solution that is compliant with state and federal laws while satisfying the wishes of all parties to the extent possible.
What If Estate Administration Costs or Creditor Payments Eat Into Inheritances?
The family allowance and estate administration costs come before all other claims. Creditors must also be paid in full before probate can be closed. There is no avoiding these legal and financial obligations.
In the event that there have not been any finances set aside for estate administration by the testator, then the value of the estate will be decreased in order to pay these costs. These losses will usually be made proportional to the beneficiaries of the property once assets are distributed, or the primary recipients can decide to “eat the cost” of administration. In any event, it is the sole power and legal duty of the personal representative to make sure the costs are paid.
When Dealing With Siblings During Probate, It Helps to Have a New Mexico Probate Lawyer on Your Side
Some issues between siblings cannot be resolved because they are emotional or based on past experiences. But when it comes to probate law, there is an expectation that things are done in a certain way and that all parties will work together to resolve conflicts in order to make this happen. In other words, when there is conflict among siblings after a parent’s death, many times what will happen is that probate will have to stop and wait until the disagreement is resolved.
Navigating probate is not always easy, and having siblings in disagreement is bound to make it harder — but the law is there to help guide everyone. Whether you are trying to work as a personal representative or have a competing claim or have any other issue regarding a parent’s estate and probate, our firm can be here for you. Call New Mexico Financial & Family Law today at (505) 503-1637 or contact us online to schedule a confidential, no-risk case review.