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My two brothers were appointed co-executors of my Moms will. Probate has been done for months now. We all 3 inherited her house in equal shares, two of us live there. I am being told because they were executors that they can decide to sell, without my consent as they are still in charge, due to being executors. Is this true? I was under the impression that when probate was settled and all the affairs of the deceased person had been settled, that the duty and/or authority of an executor is done.

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    what jurisdiction is this in? What country, and if a federal country, what province or state? In some cases local (city or county) laws may also be significant. – David Siegel Nov 30 '20 at 23:52
  • Gaston county NC – Cathy Bentley Dec 1 '20 at 20:46
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If three people inherited a house in equal shares, then a new deed should have been prepared and filed with the appropriate governmental authority (the county in most US states) before probate is closed. When that is done the authority of the executors over the house as executors has ended.

However, if I understand you correctly, the two former executors are also two of the three heirs to the house. Thus they own a 2/3rds interest in the house. At least they can sell their interests without your consent, leaving you a minority owner with the purchaser owner a majority. In some jurisdictions they may be able to force a sale, paying you your share of the purchase price. But this would be because of their majority ownership, not because of their former status as executors.

Addition: In some states co-owners who are joint tenants may not sell their interests without the consent of the other co-owners, but this is jnot true in North Carolina

According to the site of the Hutchens Law office:

ownership as tenants in common provides each party with the right to sell, gift, devise, or otherwise convey their interest in the property without the permission of the other owners. This means that the ownership interest is freely alienable or transferable. As a result, an owner may sell or give their interest in the property to anyone they want, or they may willingly or by judgment use their interest in the property to secure or satisfy a debt with a creditor. Therefore, parties entering into an agreement to purchase property as tenants in common should be aware that they may ultimately end up owning the property with a stranger. If this were to happen, there is a way out, but it may be costly. At any time, if the parties can't agree, any owner may petition the court for a partition of the property. The court could require one owner to buy another out or force the sale of the property. The court will decide the ultimate outcome based on equity.

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[I]f the intent of co-owners holding interest as joint tenants is to automatically transfer their interest at death to the survivor, the language must be on the conveying instrument as right of survivorship is not automatic with joint tenancy in North Carolina and if the language in not included, the decedent's interest will pass to his heirs.

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However, any owner has the right to convey their ownership interest during their life; and if they do, the survivorship agreement ends, and owners simply become joint tenants by operation of law.

In North Carolina there seems to be little practical difference between co-owners who are tenants in common, and those who are joint tenants without a right of survivorship. But whichever form of co-ownership is chosen: tenants in common, joint tenants without a right of survivorship, or joint tenants with a right of survivorship, each of the co-owners has a right during his or her lifetime to sell, give away, or use as collateral on a loan his or her share of the property, without consulting the other co-owners. They cannot force the other co-owner(s) to sell, except by starting an action of partition in a court, when a judge would decide. An unrelated buyer might be unwilling to purchase only a 1/3 or 2/3rds interest, because the remaining co-owner(s) would still have full rights to use and occupy the house, can could sell to a different buyer.

All co-owners are responsible for their proportionate shares of all expenses, including mortgage payments, repairs, and taxes.

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  • Does it matter if the will specified the brothers as joint tenants or tenants in common? – DJohnM Dec 1 '20 at 20:32
  • @DJohnM Not in NC, although it would in some states. I have added to the answer some NC-specific info. The only difference in NC is what happens if one co-owner dies, and that only if survivorship is specified. If no form of holding is specified, the default is tenants in common – David Siegel Dec 1 '20 at 22:47
  • The will stated that the house would remain available to any of the three siblings/hiers should they ever need to live there. My oldest brother has been there for 10 years prior to our moms passing and is still there, I have since separated and am living there as well. But he keeps telling me that he has the authority to do whatever he pleases because he was co-executor with my other brother. Again, I thought that once probate was complete and settled, that the title of executor was gone and not in play anymore – Cathy Bentley Dec 4 '20 at 18:30
  • @Cathy I am pretty sure that your brother is mistaken about his powers as executor. But I do hope it does not come to a situation where a court would have to decide. Was a new title deed created and registered? If not I would think that should be done. I am not sure what if any extra effect the provision in the will that the house remain available to all three sibs would have. – David Siegel Dec 4 '20 at 21:08
  • @David, I hope that it doesn't come to the courts having to decide too, as that would be an unnecessary expense that neither of us can afford at this time. He is just a bully, one of those "alfa male" types who thinks that his word is law... and he's not happy when I, being the lowly baby sister have an opinion or should dare to act as if I actually have some sense and won't "dumb myself down" to make him feel superior. I was not privy to all the dealing with the probate process, but I never signed any papers or a new deed, I would think that would have required my signature to be finalized – Cathy Bentley Dec 6 '20 at 0:22

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