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Monday, January 12, 2015

Title was transferred from deceased to beneficiaries, but executor is still trying to control the sale

A reader recently asked me about the logistics of the sale of a condo from an estate. It's a very specific question, but the bigger question about the extent of the authority of an executor applies to many situations. I thought this question and response would be of interest to many of you.

"My father passed away and in his will he wanted his condo to be sold and shared equally amongst me and my siblings. Title was transferred to our names. We listed the property and all three of us signed off on the listing. My sister is the executor and along with my brother have dropped the price without my consent. Since we are all on title, can the agent do this without my consent? Can she as executor make these decisions without the beneficiaries' consent?"

Before answering this, I have to note that there was actually more to the question, but I can't read it all. The question was posted on one of the blog threads that has more than 200 questions, and once it passes 200, the system won't let me see what is being added on. I can only see the first couple of lines as they show up in my notification. I post a warning in red font on threads that have reached 200, but people don't really seem to see it. In any event, I'll answer the part of the question that I can see, so at least you'll have a response to part of your issue!

Alright, on to the question at hand.

I don't know why this property was transferred into all three names before being sold. The will wouldn't require this. It would have been easier, cheaper, and faster just to have the executor sell it from the estate and then split the proceeds among the beneficiaries. This is being done the hard way, but perhaps the beneficiaries wanted to do it this way to have control of the sale price.

In any event, the transfer was done, and now the property is owned by three people. This means that the executor no longer has any authority over it. Assuming that your sister is one of the three owners, she has equal say with the other two siblings, but she is no longer in charge of that property. It's not in the estate and therefore she has no legal ability to make decisions on your behalf. She has to take off her executor hat and put on her sibling/beneficiary hat.

Assuming that the three of you signed a listing contract that requires all of you to agree to a selling price, and assuming that the agreement does not authorize anyone to speak for you on the selling price, then you must be in agreement with the others before changes may be made to the listing.

You're going to have to explain this to her. I hope she is open to this clarification, or perhaps has an estate lawyer that she can consult for confirmation of your information. It could well be that she is not deliberately throwing her weight around, but that she simply doesn't realize how it all works. Most executors do their best, but don't have much experience to draw on.

It can be hard to figure out where an executor's authority starts and ends in any given case. In this case though, your instincts are right and the executor is exceeding her limits. The executor ceased to have authority over the property when it was taken out of the estate and transferred to the beneficiaries.



4 comments:

  1. Wish I had had this information before! My mother gave my brother and myself a very powerful power of attorney. She had discussed that due to the fact that we could incur debt on her home, she had advised me to transfer the house when it was a given that she would not need it anymore. I have two other brothers who had nothing to do with my mother during the last 20 years. My youngest brother and I made the transfer to joint names with my mom with right of survivorship as my mom had directed, but he then treated the house as estate property. While I did not fight this and allowed the house to be divided by 4, My brothers then fought me for four years about a 20 year old bank account that my mother and I opened and operated together. It destroyed my family, I might as well have fought for the house too! Wish that my mom had hired a professional to be the executor, instead of leaving her four children all as executors, the bullying was extreme!

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    1. I'm sorry that the estate was so tough on your family. You're right that a professional executor might have helped the situation. If nothing else, they provide a buffer. Also, people tend to behave themselves a bit better when they realize someone outside the family can see how they are acting.

      Another thing that might have helped was a discussion between you, your youngest brother, your mom, and an experienced estate lawyer. The idea of putting her house into joint names was always going to be problematic, though you may not have known it at the time. Our law has said since 2007 that property owned jointly between a parent and a child is still part of the parent's estate. There is also the problem with powers of attorney transferring assets to themselves. None of that was ever going to work out, and it's too bad, like you say, that you didn't have better information before.

      Lynne

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  2. Hi Lynne, I'm terrible with computers I wrote out a question to you and when I tried to post it. I lost the info. Do you have an email address?

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    Replies
    1. Sometimes people think the post is lost, but they're not. They don't show up on the blog until I vet them. This keeps out the spammers. So, your question might be here. If you prefer to email me, you certainly may do so at estatelawcanada@gmail.com.

      Lynne

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