Wills, Estates and Inheritance Questions and Answers for October

Due to changes in laws that pertain to wills, estates and inheritances, it is important to speak to an attorney that is well versed and current on these issues.

Question: If my brother is executor of my mom's will but I'm also on the deed, can I force him to sell her home? 
Question Detail: My mother died in 2009 she left all her property to 6 grown children to be shared and shared alike. My brother is the executor of her will. He placed the property in all 6 children's names, on a deed, but is yet to sell the property and disburse the cash. He is holding on to her residential property plus a rental property. He is receiving the rent money from the rental. What are options? I am the second executor on the will, only if my brother is unable, or unwilling to fulfill the requests of the will. 

Answer: This issue warrants investigating more facts.  If he conveyed the title to all of you, then all of you are now owners, not the estate.  In such case the estate should not receive the income of the property.  Instead all 6 of you must share it, and declare your respective share of the net income on your income tax returns.  If the property is still in probate, then the rental income is income of the estate and must be duly reported on the accounting as presented to the court.  So, if the property is owned by all 6 of you, then you all should agree to get a realtor, list the property and sell it. 

Question: If I have the power of attorney over my moms estate, can I sell her home to help pay her assisted living bill?  

Answer: If the power of attorney grants you such power, yes.

Question: What is the best way to pay a sibling their portion of value of our inherited home?
Question Detail: My brother and I inherited our mother's paid off home. He wishes to get his half of the value of the home and I wish to live in it temporarily before eventually selling. Don't know how to go about this and I am fearful of placing myself in debt or not being able to profit from the selling of the house once sold.

Answer: 1) outright from your funds; 2) apply for a mortgage to pay him his half; 3) enter into a promissory note with him (and perhaps give him a mortgage on the property as security) to pay him over time.

Question: Do children born outside of marriage have rights of inheritance?

Answer:  It depends upon the law of the applicable state and what the Will says, if there is one.  If there is no Will, a state statute may include the biological child as an heir.  If there is a Will and the child was born prior to its proper execution the Will language most likely controls.  If there is no mention of the child, he/she may sue, but is likely not to succeed.  If the child was born after the Will was properly executed, some states have statutes that would include the child as an heir despite what the Will says. 

Question: Can a family owned property be sold without one member's consent?Question Detail: My three sisters and I own a property. It has been in our family for almost 60 years. My grandparent's intent was for the property to remain in the family but my sisters want to sell it. Can they force me to sell if I am willing to take over all ongoing expenses?

Answer: Good question.  The answer depends upon how the business structure is formed – LLC, Corp, etc. – and what those business documents say about the issue.  Depending upon the jurisdiction, they may also be able to file a lawsuit for a partition action or to force a sale.

Question: If a will has property that is divided among five people, can one person sell it without their consent?

Question Detail: My father left a will that gave his third wife 50 percent of his estate, which mostly involves our childhood home that my he purchased with my mother. We, his children, are to split the remaining 50 percent among ourselves. His widow has not probated the will, so we haven't seen it yet, we were just told it says this. She is now attempting to sell the house without the will being probated and she has not paid taxes on this house in nearly three years. Can she sell the house?

Answer: If the title of the home is controlled by your father’s Will – in other words the home is a probate asset – only a court-appointed personal representative or Executor may sell the home.  If his wife attempts to sell it and you children have an interest in the property, the only thing she could sell is her interest, and if she receives that interest only through the Will, she can’t even do that without probating the Will.

Question: How do I buy my mother's house after she died without a will? 

Question Detail: My mom recently died without a will. My sister and I have been named administrators of her estate, and have been living in the house before (and since) her passing. My sister and I would like to have the house put in my name so that I can refinance the mortgage and keep it (we'll both be living in it). My mom's estate is insolvent, and the mortgage on the house is by far the largest debt owed. The credit union won't/can't proceed, however, until they have the proper documentation that the house is in my name. How do I proceed?

Answer: You must probate her property to have the tile pass to you and your sister, if that is how your state’s intestacy statute would transfer title.  Then you could refinance and pay off your sister and get title fully in your name.  However, if the home is the only asset she owns, her creditors may make a claim against the estate, thus the home.

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