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Monday, December 30, 2013

What if the executor refuses to sell the family home?


The executor of an estate has a lot of authority to deal with estate assets, but the bottom line is that all decisions made by the executor have to be made in the best interest of the estate. Realistically, there can be opposing opinions on what is best for the estate, so communication and common sense are key. There has to be a balance between the executor's authority and the beneficiary's rights. A reader recently wrote to me to discuss a situation like that. Here are his letter and my response:

In their wills my parents have my sister as executor. The estate is to be divided between my sister and myself equally. What would happen when both of my parents have passed away and my sister does not want to sell our parents’ home? What if she were to rent it and she does not share any money from the rented house? If I have told her to sell the house but she ignores me and won’t sell the house and therefore the estate is not divided. Can I sue her or because she is the executor she can override my wishes?

Perhaps your sister believes that the housing market in your area is weak, and that she would get a better price for the house if it were to be sold later. In that case, renting it out could be a good solution, as long as she keeps the house insured and properly maintained. All rental proceeds, however, MUST be placed in the estate bank account, as they belong to the estate and not to the executor. She could disperse rental income to the beneficiaries equally during the rental period.

As always, there are executors who abuse their role, either because they are somehow benefiting from the current arrangement or because they just can't be bothered to take care of things properly. Some executors will let a rental arrangement go on for years without properly accounting to the beneficiaries for the delay or for the money, and this is almost guaranteed to result in a lawsuit.

The executor has to realize that as a beneficiary, you have the right to expect the estate to be finalized in a reasonable amount of time. This means that unless there is a really good reason for not selling the house (and by a good reason, I mean one that would make sense to a judge hearing the case if it came to that), the executor should sell it as soon as reasonably possible.

An executor in the situation you describe has the following options:
1. To sell the house asap and divide the proceeds according to the will;
2. If she has a sentimental attachment to the house, she could take the house as part of her share of the estate. If the house is worth more than her share, she can mortgage it to pay you out the balance;
3. Rent out the house, banking the proceeds as described above, as long as she has a good reason for it or your approval of this arrangement, does not exceed a reasonable time and is properly accounting to you for the rental income and expenses.

It often becomes complicated when one individual is both executor and beneficiary. Many people appear to find it difficult to maintain the neutrality that is required of an executor, and they tend to follow their own wishes as beneficiary. Executors need to understand that they are trustees. Trustees are by law not allowed to benefit themselves from the trust assets they manage. When executors are unable to put the estate's interests ahead of their own, lawsuits result and the executors find themselves in front of judges trying to explain whey they should not be removed as executor.

You cannot sue an executor for not doing everything you ask. However, there are rules that I've mentioned in this post that must be followed by an executor, and if they are not followed, you can sue. If the executor refuses to wrap up the estate in a reasonable time, or is causing a financial loss to the estate by not dealing with an important asset, or is simply maintaining the status quo because of a financial gain to herself, then you can ask the court for help. As you can see, this is not a simple answer. Every estate decision must be reasonable, and "reasonable" always depends on the specific facts of the case.

I recommend that  you speak with an experienced estate lawyer in your area. I sometimes find that executors just don't realize that there are limits on their authority. Perhaps your sister is one of these, and a letter from a lawyer representing you may achieve the results you want without the expense and stress of a lawsuit.



1 comment:

  1. Hi Lynn, I am the executor and my sibling doesn't want to sell the only estate item, the house he lived in with our Mom. He never worked and was enabled all his life...he is in his early 40s and animosity is grown. He has some horder tendancues. Mom died in the fall of 2014. I wanted to settle the estate by spring 2015, but he is adimant not to sell. He doesn't want anything to change . My 3 kids are also beneficiaries. With no job , buying me out is not an option...selling would give him the funds to move forward and gekp me and my famuly. The 2 of us were are tenants in common with. Parents divorced 15 years ago. I want this done with to move on . Selling is the only viable option so that I can get my share and the other beficiaries can get theirs. Dad left enough fund in a joint account that the 3 of us had to help both of us move forward. Please advise!

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