can i evict sibling

probate has cleared and accepted inventory of estate problem now is my brother has moved into the house with ex wife and kids he has not paid a penny for anything in over two years towards the estate, i have paid all bills taxes and utilities etc. over 10,000 i am the executor and wish to sell will stated 50/50 cleari have informed him of my intent to list the property, he will not let me show the property and has begun threatening me through texts etc. i also informed him of my intent to hold an estate sale that only made things worse. BTW he is a convicted felon with a long rap sheet comprising of duis and domestic violence convictions so the real estate agent fears for her safety as well as i as he post on face book holding a rifle. i fear that if i get a TRO or approach his probation officer could make thing worse. All i want is to sell and move on with my life any advice would be appreciated.NOTE i have a probate attorney they said that i have no legal recourse.REALLY?

Asked on October 1, 2017 under Real Estate Law, Ohio


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

There is legal recourse. If title of the house has not yet been transferred to the beneficiaries/heirs and yet remains in the estate, then as executor, you can remove him in order to prepare, stage, and market the house for sale, then sell it, in order to distribute the proceeds or equity 50-50 (since the house cannot itself be split 50-50, selling it is a reasonable approach for the executor). You would remove him in this case by filing an action which at common law was called an action for "ejectment" (it may have a different name in your state; e.g. for unlawful distraint) and which is essentially "eviction of nontenants." As executor, you would have the authority to do this; retain a landlord-tenant attorney (who also these actions, as well as typical tenant evictions) to help you. It can be paid for by estate funds, if there are any, as an estate expense, and typically takes around 3 months (at least that's how long it takes in NJ, where I practice, from start to finish usually).
If title of the home has already been transferred to yourself and your brother, then there is a different action, traditionally called an action for "partition," which you can bring. When the co-owners of real estate cannot agree on what to do with it (e.g. one wants to live there; another to sell), the court does not make the one who wants to sell remain tied to and responsible for real estate against his/her will; rather you can bring a legal action in which you seek a court order compelling that the home be sold and the proceeds, after paying any mortgage, lien, and cost of sale. In the course of granting that order, the court can also order your brother to move out and cooperate in the sale. A real estate attorney can help you with this action. It is possible--but not certain--that the court can also give you a credit for the extra expensives you paid and give you a larger share of the money.
Those are you legal options regarding the home. If you are sufficiently afraid of him and there is not much equity in the home, you might alternately elect to sell him your interest in the home for some small amount (e.g. the $10,000 or so you spent towards the home) and just washing your hands of it. Obviously, if there is alot of equity, you would not want to do that, but for a small amount, that might be the best course.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.