Attorney Thomas B. Burton answers & discusses the following question in this new episode: One Sibling Wants to Sell Mother's House and Three Do Not!
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I'm Attorney Thomas Burton and welcome back to our Question and Answer Series!
Today's question is a viewers submitted question. We thank you for the question, so let's get right into it:
"There are four siblings. One wants to sell and three do not want to sell. It was in my mom's will, after she died, that we keep it for one year. She highlighted it and initialed it if there was enough money and there is but she is insisting on selling it now. Do we have a right to keep it for one year like the will says?"
First of all, not sure what you're referring to but my guess is, real estate like a house or the farm or something like that when you talk about selling. It could be anything really but it sounds like a house here and mom's will said, to keep it for one year and it sounds like one of the siblings wants to sell before that year period is up.
In general, if the house is passing under the terms of the will the will must be followed. So the first thing is, is it a valid will? Is it properly formed and signed in front of two disinterested witnesses? If we have a valid will and if the house was solely in your mom's name and it's not passing any other way, non-probate by deed or by trust, then it would pass under the term to the will and after your mom's death, the house would become part of your mom's probate estate and these probate estates would be governed by the terms of the will. The terms of the will must be followed. If your mother has passed, the will cannot be altered.
The answer is, it should be held for that one-year period. So whoever is the personal representative named in the will, they are the ones responsible for making sure the will is followed to the letter of the law and enforcing that one-year holding period.
Now in terms of the sibling who wants to sell, it's going to depend what the will says after that one-year period, does it say sell the property and divide it amongst the four siblings or does it say something else like it's a vote of the siblings or something like that but if one sibling wants to get out of this, assuming it's real estate long term, you likely want to buy that person out because they're going to be unhappy. So whether you can use funds, if there's other cash in the estate, sometimes a person who wants out of the property, can get cash instead and then it would just be the other three of you who end up as owners of the property.
However, if it says, keep the property forever, well it doesn't say that here but what I'm saying is, if it's said, we're going to hold the property a long time after death, that's the situation I'm contemplating, where this one disgruntled sibling, you probably don't want as a co-owner anyway.
I don't know what it says after that one-year period. Does it say sell the property, does it say, take a vote of the siblings or does it say sell all my property and distribute the proceeds etc. but in general, that one-year period must be enforced if it's in the validly written will.
The highlighting and initialing portion, I understand your mother likely did that to emphasize its importance but for other people watching, I don't recommend that you write, highlight or initial your original will at all because it can look like you're trying to change it and later, if someone's trying to throw out your will, in a court challenge, that's something they could try to use.
If you were all co-owners of the property, then this one sibling who wants to sell, could possibly go to court to get what's called a partition action to force you to sell the property and that's why I caution people about the dangers of jointly owned property and it's not a great way to hold real estate or pass it on to people. So I would be wary about that but if it's passing under the will, the terms of the will must be followed and if there's one year holding period in the will, that's what the personal representative must do.
So excellent question! Thank you for asking, thank you for tuning in and we'll see you next time.
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