Mom left us a house in Texas

[gerhartl]

Mom died last week. Will supposedly says estate is to be divided equally among five children. Eldest son is executor. Mom left house paid off but 12k credit card debt and small med bills. House and furnishings approx. 125K. 3 siblings want to cash out. Executor leased house to fifth sibling against others will. Do the three siblings that want to sell have any recourse?

 

[latigo]

Rather sad to hear of the short time it took for the siblings to be at each other’s throats over the spoils. Too bad mother didn’t leave the home to a worthy charity instead of her scrapping children.

Be that as it may, if you want to do something to counter the Personal Representatives action in leasing the residence, then hire an attorney. You thus might be able to proceed under the Texas Probate Code * for his removal due to mismanagement of the estate and the appointment of a successor.

"Mismanagement" that might lie in the fact that he exceeded his statutory authority under that Code in leasing the property. The PR is charged with preserving the estate not encumbering them by debt or long term possession rights.

Also, it would be disastrous were the home to be distributed out of probate in equal undivided ownership by the 5 devisees, with each have equal rights of possession and the inability to sell the property without mutual written consent.

The heirs should consent that it be sold out of probate and the net proceeds distributed rather the home itself.

Talk to the attorney. There is nothing you can do without one

Also discuss with the attorney the heirs’ inchoate title to the home conferred upon them immediately upon the death of the testatrix. Inchoate title means that the heirs receive the legal title to real property subject to only the administration of the estate. Which I would argue prevents the PR from committing it to any but a short term rental and only where shown necessary to fund the expenses of administration.
___________________


[*] Grounds for removal of personal representative:

Texas Probate Code Chapter VII, Part 1 Section 222 Removal of Personal Representative Subsection (2)(b)(4)

“The personal representative is proved to be guilty of mismanagement in the performance of the personal representative’s duties.”

PART 5. GENERAL POWERS OF PERSONAL REPRESENTATIVES

"Sec. 230. CARE OF PROPERTY OF ESTATES. The executor or administrator shall take care of the property of the estate of his testator or intestate as a prudent man would take of his own property, and if there be any buildings belonging to the estate, he shall keep the same in good repair, extraordinary casualties excepted, unless directed not to do so by an order of the court."

And I see nothing in Sec. 234. “EXERCISE OF POWERS WITH AND WITHOUT COURT ORDER” that specifically empowers the PR to lease real property.

 

[justalayman]

OP wrote: Will supposedly says estate is to be divided equally among five children.

Latigo wrote:

Also discuss with the attorney the heirs’ inchoate title to the home conferred upon them immediately upon the death of the testatrix.

Maybe I'm missing something but I do not see any rights of title to the house conferred based on what the OP posted. Estate divided equally means they each get an equal monetary value. It says nothing as to title to the house.

Does not the executor have the right to determine how the estate is distributed and has the right to convert property to cash to be able to distribute the estate?

I understand the leasing situation being incorrect and counter-productive to settling the estate though but ultimately, as long as the exec. can provide each devisee their share of the estate, would the lease even be of concern?

I guess my point would be: what right do the devisees have to force the exec to retain the house and title it to all of the devisees rather than selling it and dividing the cash?

 

[gerhartl]

Mom had cancer for the last several years. Her intent was for us to sell the house and divide the proceeds. Executor has always proclaimed that as his wish too. One sibling has offered to buy the house--in a year--for over market value. Executor fears house wont sell, so enters into a lease--for a year. Therefore, the rest of us are shocked and have no good reason to believe that sibling will ever pay rent, much less purchase the house--at any price. It appears that the two have had this plan for awhile, but it is the first the others of us have heard of it. Wouldnt mind leaving the house with him if we felt he was trustworthy. By the way we have been at each other's throats much longer than since mom died

 

[anteater]

Has the "executor" actually probated the will and been appointed by the court?

 

[gerhartl]

Executor claims that wills do not necessarily have to be probated in Texas. So, I guess the answer to your question is "no", the will has not been probated or recorded.

 

[justalayman]

so, who validates the legality of the will if it isn't submitted to the probate court?

has any sort of probate even been opened? If not, there is no executor or administer which is required so somebody can act in a legal capacity for the estate. Who does the brother think is going to sign any legal documents for the estate?

 

[TrustUser]

who does the brother think is gonna sell the house ? i dont think the deceased mom is gonna be doing any signing.

 

[gerhartl]

Ok guys, just finished reading Tx Probate Code--all 13 chapters. According to Ch VIII Part 6, Renting the property for up to a year isallowed.

Another tidbit that I have considered. "Executor" brother holds a financial power of attorney for deceased mom. I am assuming that is the reason he feels no need to probate the will.

Further, after reading the qualifications of an executor/personal representative in Ch IV 78 (c), brother would be disqualified as executor since he lives out of state.

With all of this new knowledge, I now have more questions. If I were to probate the will, since I have an interest, would the court appoint a qualified executor that resides in the state? Would the new executor have any more legal standing than the financial power of attorney? Would the small worth of the estate withstand attorney fees?

 

[ShyCat]

"Executor" brother holds a financial power of attorney for deceased mom. I am assuming that is the reason he feels no need to probate the will.

Your brother is mistaken. His POA expired with your mother's death.

 

[anteater]

Further, after reading the qualifications of an executor/personal representative in Ch IV 78 (c), brother would be disqualified as executor since he lives out of state.

Yes, but the non-resident only needs to have a resident agent. And since I believe most Texas probate courts require retention of an attorney, the attorney would be the resident agent.

There are some ways of avoiding a full probate in Texas (such as probate of the will as a muniment of title), but the creditors would have to be paid before that process could be used.

Apparently, there are going to be fights here over disposition of the house. It's probably better to have them hashed out during probate rather than let the whole matter linger or end up in a partition suit later.

 

[justalayman]

so, who is going to open probate? It would seem brother is reluctant so it's either time to step up and consult a lawyer that can give you specific advice or accept the mess that has already started as a sign of things to come.