Hi guys -
As usual it’s been a while. I’ve been so busy I’m lucky if I get to log into anything that’s remotely entertaining or educational.
I have a question that I don’t have a clue if anyone can answer or even if this is the right place to post it.
Dad died in nursing home 12/12/2020. I am executor for his will. I have everything taken care of except one thing…
My dad loaned my brother $10,000.00 back in 2008. Set it up as a private mortgage on a property that my brother owns in conjunction with my mother. This is showing up as a (lien?)mortgage on the property.
My brother never paid the loan. I think he may have made a few payments but never paid in full. (had a piece of paper that showed a few payments, but it seems to have disappeared. I suspect it went missing around the time that my brother was living in dad’s house.)
My brother wants me to “release” the lien or mortgage on the property. (rental house) When I discussed it with the lawyer that wrote my dad’s will, he said that because my dad never pursued getting payments on the loan, that we/he cannot do so now. He also said that the only one that can “release” the lien/mortgage is my dad. (obviously he can’t do that now.) catch 22
My brother was renting the house, but when covid hit, his tenants stopped paying. (not that they paid on time ever anyway.) In addition to the mortgage held by my dad, there is an Equity Loan in my mother’s name. Her name is on the deed. Her name on the Equity Loan. My Brother is not on the Equity Loan. My brother is on the deed.
My brother was talking about selling the property. He’s recently changed his mind, because I explained to him that “I”, as executor, cannot release the lien/mortgage. I was told this by a second lawyer that I consulted with. (IE: I have to do what’s best for my dad.)
Here’s the breakdown:
House market value: $37,000 through $69,000 (depending on where you look)
Tax Assessment:$40,000
Equity Loan in Mom’s name: $12,000 currently owed.
Mortgage in Dad’s name: $10,000 currently owed.
Taxes owed: Unknown (last I knew they were delinquent) I do not know current status other than the April portion had not been paid. approx $900 a year?
My brother is now @ 62. has never worked a “real” job and never paid into social security. Currently, he lives in NC. House is in Syracuse, NY. Last I heard he was evicting his tenants for non payment. Not sure what the status is now. He has not been paying on the Equity loan that is in my mother’s name. I’ve had to pay that out of her fixed income. SSI and pension my dad left her.
There’s been a number of other issues with my brother. too long of a story to relate now. He’s not talking to me directly. (I threw him out of my parent’s house.) Everything I hear from him is second hand through my sister.
My original questions was… how do I relate this information on Dad’s will probate. Small estate probate in NYS. Do I just add a copy of the lien/mortgage to the probate report and hope they will sort it out? Will dad’s estate/probate be finished? Does the Estate stay open until the 10k mortgage is paid off?
Dad left nothing to my mother in his will other than what he was required to leave. (insurances, pension, SSI, their joint house.) Everything he had went to pay bills. In fact, the two items he had left were a HELOC on the joint house, in his name only, and another loan that he borrowed for my brother, that my brother stopped paying as soon as dad died. (we are currently getting another HELOC in my mother’s name to pay off the one in dad’s name.)
This lien/mortgage is the only item I don’t know how to report.
Second question is: Should my mother try to force a sale of the Syracuse rental house? (she’s never seen a penny of the rents.) My brother is not paying the equity loan in her name, and doesn’t seem to be paying any of the other expenses on the house. If she dies, he gets the house in entirety. (not sure what happens to the equity loan, probably needs to be paid off regardless.)
Third question is: **this is a long shot. Would it be in my mother’s interest to buy my brother out (assuming she could afford it) and collect the rents herself. (with my help, she’s 88.) Or turn around and sell it to “break even”.
I’d be interested in anyone else’s thought on this. need to see an outside perspective. I’ve been drowning in this mess for so long, I can’t see daylight. The second lawyer I consulted wanted @ $3,400.00 just to take a look at this mess. (Not a sum I have to hand right now.) 
Any help would be appreciated.
Thanks - Ianna