A waiting period for Trust distribution?

What is the name of your state? CA

My father died 11 months ago and named my brother as executor for his Trust. My brother and I are to inherit equally my father's house, but my brother and his wife have been living in that house since before dad died and do not plan to move out for another year. My brother had told me he planned to take out a loan to buy me out within a few months after dad's passing, but after delays to those plans kept occurring, he now tells me that he cannot get a loan because he is required to wait a year before he can legally buy out my half of the house from me. Is this true, and if so, will I have to settle for half of a newly-assessed (and lower) value of the house instead of the original assessment at the time of dad's death?

Required by whom to wait for a year? You need to pin him down and specifically ask him where he got his information about that.

Have you received a copy of the trust which is your right as beneficiary? You can request it by sending trustee a certified letter, or better yet, having your attorney send it on your behalf so trustee will be less likely to ignore the request if it came from just you.

Is there a will being probated or is that not necessary since perhaps all assets may have been put into the trust?

If you have received a copy of the trust, see what it says in there about who gets the house and if there is any indication that house has been officially titled as trust property. Look at county courthouse property records online/assessor's office to see who the owners show of the house now and if the trust is mentioned as owner.

If you don't get reasonable sounding answers or if he keeps stalling, I would be concerned and would want to consult a trust attorney to find out my options.

DANDY DON IN OKLAHOMA ([email protected])

Required by whom, is a good question. That's what I'm trying to find out, if there's a law about waiting a year before a co-inheritor can buy out another. My brother had gone to a real estate loan broker and that is what she told him.

I do have a copy of the trust, and the house is in it, but I don't know if my dad is still on the title or if legally it is now owned by the trust anyway. What kind of possibilities could those differences create?

No probate has been necessary since all assets were put in the trust. The trust states that the house is to be divided equally between me and my brother.

Thanks so much for your reply and your suggestions.

-Marsha

Your brother should be paying rent. If not evict him.

Your brother should be paying rent. If not evict him.

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Curb1 is half right. Brother should be paying rent. However, you can't evict him as Brother is the only one who can act as the trustee. But, by not paying rent, brother may very well be in breach of his fiduciary duty and you can bring suit for that breach. (It would not be an unlawful detainer.) This is only if the property is still in the trust. If it has been distributed, owners have a right to possession and no rent is due. So, in either case, there will not be an eviction.

tranquility,

You said, "If it has been distributed, owners have a right to possession and no rent is due."

Are you suggesting that the brother (half owner) can live in the house until his death?

I'm not aware of a statute prohibiting sale, but that is not the problem. Your brother is stalling, hoping you don't learn about the rights of cotenants. As a beneficial tenant in common, he can live in the home for as long as he wants, rent free. If you want, you can move in too, and he can't stop you. If your brother won't buy you out, you will need to initiate a partition action to force the issue.

Are you suggesting that the brother (half owner) can live in the house until his death?

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You are allowed to live on property you own. Technically this is possession. If you make a profit by renting it out, say to a biker gang, you need to split the profit with other owners.

Quite interesting, Tranquility. The house is still in the trust and has not been distributed yet. I believe my dad's name is still on the title. I would think then, that since my brother is occupying the entire house and he's not in possession of any of it yet, then he should be paying me rent for my half that he's using.

I'm not interested in evicting him, in any case. I just would like him to give me half of the value of the house as promised when it was evaluated a year ago. Now he's made me wait and the value has dropped... Alas, there was no agreement in writing.

Quite interesting, Tranquility. The house is still in the trust and has not been distributed yet. I believe my dad's name is still on the title. I would think then, that since my brother is occupying the entire house and he's not in possession of any of it yet, then he should be paying me rent for my half that he's using.

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Not exactly. The house is in the estate and the brother is in control. He has the fiduciary duty to take care of the property and to not "waste" it and to make sure the assets are invested appropriately. He will argue he is staying there to make sure hooligans are not ravishing it. You will argue he has the duty to rent out the property. You don't mind if he rents it to himself. For a number of reasons regarding self dealing, you will win the argument. Brother should pay the FMV of rent for the property to the estate. You will get the estate distribution appropriately.

Now he's made me wait and the value has dropped... Alas, there was no agreement in writing.

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If there is no good reason, this also could be a breach of fiduciary duty. But the final answer is that you will convince him to deal with you fairly or you will need to sue him for breach. He can use the estate to defend and you will have to come up with the money or get it on contingency. I think you have a good case, be sure you get an attorney who will take it on contingency to make sure if you do decide to sue.

Are you sure the house is in the Trust?

You said, "The house is still in the trust and has not been distributed yet. I believe my dad's name is still on the title."

Is the house titled in the name of the Trust? Or, could it be that the house was never titled in the Trust?

The house is either in the trust or in the estate. Choose one, rinse and repeat.