Are my sister and I beneficiaries to my father’s share of a house that my grandmother owned,if itwas sold after his death?

My father passed away in 05/10. My grandmother passed just 3 days before him. At one time when my father was caring for her, and he was made executor of her Will. When he could no longer do this he and 3 siblings put her in a rest home. My uncle, the oldest, was then made executor but my dad was still a beneficiary. My father became mentally ill and was then estranged from family until diagnosed with cancer and he passed. We found out that the house was sold by my uncle. He sold it to my dad’s sister and everyone got a share but my father, who had already passed. Don’t know if the Will was destroyed.

Asked on March 10, 2011 under Estate Planning, Michigan


MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You are absolutely correct upon a condition, that I will get into below. Let's start with the general theory your father had a will naming you and your sister as beneficiaries of his entire estate upon his death. If your father was named a beneficiary, then upon his passing, you and your sister would be his beneficiaries, especially if he did not have a wife. So if your uncle did not properly fulfill his duties as executor whether for his own profit or their sister's profit, he essentially then breached his fiduciary duty to your father and then his estate and indirectly to you and your sister. If he died intestate, and per the grandmother's will your father was to receive let's say a 1/3 share of the home, then 3 days later, the gift had not failed, it would simply be placed in the estate of your father. At which point, once your father died, then that 1/3 share would be split between you and your sister. If, however, there was a provision in the grandmother's will about the gift failing if someone did not survive a certain amount of time, then the gift would fail and it would be up to what is defined as the residuary how it would split. Most likely in your situation though, the uncle appears to have breached his fiduciary duty and that breach impacted you and your sister. You two now need to go to probate court and contest the distribution/sale and ask for restitution of some sort (accounting of what is owed to you) or a method to void the sale and require the sister to sell it back to the estate or make you owners with her.

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