Son worries his brother will take father's assets

Posted5/20/2022 7:00 AM

Q: My father died a couple weeks ago. My mom died five years ago. He had three sons and his only assets are his house and his IRA worth maybe $200,000.

My one brother has been in and out of trouble his whole life. He constantly fought with his brothers and his parents. I don't believe he spoke to my mom for a couple years before she died and I know he hasn't spoken to our father for at least two years.


We have been told we will need to open a probate estate to obtain access to the IRA funds and to sell the house. Our "troubled" brother has contacted an attorney and intends to open dad's estate. Me and my other brother believe this is a terrible idea as we are convinced his sole objective is to get his hands on as much of the money as he possible can and then disappear again.

He has already listed the house with a Realtor friend of his and we don't have any idea if the house is sold or what is going on with that. How do me and my brother protect ourselves from having this house sold from under us as well as protecting our share of dad's IRA?

A: This is primarily a probate question. However, I can offer some advice and knowledge regarding how you need to proceed and what issues to consider.

To start, one must determine if dad had a will or trust. If he had a will, the will appoints an executor and likely a successor executor in the event the named executor is unable or refuses to act. Presuming there is a will, the named executor would be the appropriate party to open an estate, if necessary.

In the event dad had a personal trust, the trust would likely name dad as trustee of the trust and, upon dad's passing, a successor trustee (or two) would be named. Here, there likely would be no need to open a probate estate, presuming the house was a trust asset and the IRA was addressed either through a beneficiary designation with the holder of the IRA or was also an asset of the trust. If there is a beneficiary designation, the IRA funds are disbursed per the beneficiary designation. If no beneficiary designation but the IRA is included in the trust, the proceeds would be disbursed per the terms of the trust.

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The successor trustee would be responsible for disbursing trust assets per the terms of the trust. If you are not sure if dad had a will or trust, other than looking in places you believe these documents may be located, contact any attorneys you are aware of that dad used in the past as they may have knowledge of a will or trust agreement.

If you determine dad did not have a will or trust, the IRA was not passed by a beneficiary designation and/or the house was owned solely by dad without a Transfer on Death Instrument recorded, then an estate will likely need to be opened.

You and your two brothers each have an equal right to file a petition with the court to become the "administer" of the estate. Once any of the three of you files to open the estate and become administrator, notice of the filing must be served on the remaining two brothers. The remaining brothers would have the opportunity to also file their petitions to become administrators and, unless something is worked out, a hearing would be held to determine the best party to administer the estate. This is the point where you would argue that based on your brother's history, he would not be an appropriate party to administer the estate.

A Transfer on Death Instrument is a recorded document that conveys the interest in real estate upon the passing of the owner. I strongly suggest you contact a probate attorney as soon as possible to determine your best course of action.

• Send your questions to attorney Tom Resnick, 910 E. Oak St., Lake in the Hills, IL 60156, by email to or call (847) 359-8983.

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