Question: My brother is the executor of our father’s estate. He refuses to settle the estate and distribute my portion of the inheritance to me. He has moved into our father’s home and has been living in it for two years, rent free, refusing to sell it and give me my half of the proceeds. He says he does not have to settle the estate or give me any of my inheritance since he is the executor, and I will have to wait until either he dies or decides to sell the house before he will give me my share. How do I get him removed as executor since everything he has done up to this point has been in his best interest only.

Thank you,

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Answer: Your brother is not right. Being the executor (now more commonly referred to as the personal representative) of an estate doesn’t mean you get to do whatever you want with the estate’s assets. Far from it. Although the executor has responsibility for making certain decisions on the estate’s behalf, those decisions have to be made in the best interest of all the beneficiaries, without preference for one over the other, according to the instructions left in the deceased’s will (or according to state law, if the deceased died without a will). The Colorado Bar Association provides helpful information with regard to what it means to be an executor.

As the estate’s executor, your brother has fiduciary duties to all of the estate’s beneficiaries, including you. I’ve discussed what this means in a previous post. In short, being someone’s fiduciary obligates you to put their interests ahead of your own — the opposite of what your brother is doing.

You don’t say whether your dad left a will, or whether your brother has been appointed as the executor by a court, or whether the will gave the house to you and your brother, but assuming that all that is true, your brother is legally obligated to carry out the instructions your dad left for him, not do whatever is best for him. By taking the house for himself and not compensating the estate, your brother is self-dealing, a huge no-no for people with fiduciary duties. You should contact an attorney immediately to learn what you can do to have your brother removed from his position, the estate compensated, and the instructions in your dad’s will properly carried out. Although I know it can be unpleasant to threaten family members with litigation, as I frequently tell clients, waiting to take action is almost never helpful with regard to protecting your legal rights.

I hope this helps.

If you are the beneficiary or personal representative of an estate and are looking for help figuring out what your rights and responsibilities are, please contact me to discuss your specific situation.