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Donna, Other/Just Looking in Texas

Thanks to all for answering my first question concerning the three siblings inheriting a house and land. I

Asked by Donna, Texas Tue Jul 15, 2008

will try to give further details so maybe you can help me further. The will has not been probated. There is a will stating the house and property will go to the three siblings with no instructions as to having to sell it . The sibling that wants to keep the property is the executor of the will. The house and property are very valuable so the one sibling could not buy out the other two at current market value unless they agreed to take much less. The property has great sentimenal value and the one si bling would like it kept in the family and contiued to be passed to future generations. Can the living parent of the will ,specify in the will not to sell the property or only to sell the property to any of the three siblings at a set price?

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First, the probating of the will causes the executor to be granted powers. The power to deed the property is possibly one of those. If the will contained language that granted sale of real property, then the executor can simply deed the property to the sibling who wants it. If the will did not grant that power, then the executor must bring the intended deed to the court for approval, but the same situation after that applies.
The deed from the executor to the sibling can then be recorded. Up to that point the property is in the name of the deceased (his estate).

Second, buying out the other siblings does not have to be in cash. The executor can help negotiate the terms of the division, including 2 separate mortgage loans against the property. The receiving sibling takes the title and the other 2 get mortgagee papers for the amount they did not receive in cash. For example, the house is valued at $300k. The receiving sibling takes title and pays $10k each to the other 2 siblings. The remaining $90k each is documented as a lien (mortgage loan) against the property in favor of each of the remaining siblings. The lien might state $10k per year to be paid for 9 years.

You do need to consult your tax advisor about receiving interest if such a provision is included, besides the whole inheritance tax issue.

Restrictions on disposition of real property are common. They will remain in force until they can no longer be followed or become illegal. For example, if all heirs die, what happens? The legacy may be lost to complete strangers, if the restriction is not thought out completely. If the living person specifies passing only to a married man and woman, but later a court rules that females can marry legally, then the restriction may be overridden by court to include homosexual couples.

Best advice -- ask an attorney.
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1 vote Thank Flag Link Fri Feb 6, 2009
It seems odd that the father would cut the mother out of the will and only leave the home to the children. What about Mom? Where will she live? Did he leave her a "Life Estate"? I agree with Bruce about having a Probate attorney look at the will. These people do this everyday and are more well versed on the subject. I wish you the best of luck getting this taken care of.
Sincerely,
Betina
0 votes Thank Flag Link Mon Sep 29, 2008
All of this really depends on the will and the executor. We're really guessing about this situation as we don't have all the information. You probably need to make an appointment with a wills/probate/estate attorney and discuss the sitauation with them. I'd think the commone will for spouses leaves most assets to the other spouse and only assets to the children if they both die at the same time. So if one parent has died and left everything to the other parent, then you might want to get a new will for the survivor. Take them to get it done and raise the question with the attorney. You can have new executor named, new directions taken, etc. I personally think it is a bad idea to have a child named as an executor exactly for this reason. Common practice, but perhaps not a good idea. Why not pay a trusted friend to do it.
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0 votes Thank Flag Link Tue Jul 15, 2008
Bruce Lynn, Real Estate Pro in Coppell, TX
MVP'08
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This is the 1st I have ever seen any one say thank you we appreciate your thoughts. Your family needs to have a real estate attorney involved NOT AN ATTORNEY one that specializes in real estate, they are familiar with the subject matter We as realtors cant make comments on the subject matter IF you were to sale the propery all 3 parties MUST SIGN in order to list it for sale, HAS THE TITLE been changed over for all 3 names therefore it matter of records, who is going to pay for taxes, insurance, maintaince, the list is endless. http://www.lynn911.com http://www.homes-for-sale-dallas.com
Web Reference: http://www.lynn911.com
0 votes Thank Flag Link Tue Jul 15, 2008
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