Ask An Attorney 02/26/2014 - KMOT.COM - Minot, ND - News, Weather, Sports

Ask An Attorney 02/26/2014

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• Very interesting question
• Managed to contact the person who sent it in
• The question as it came in on the web site raised several questions for me
• Red flags might be a better way of putting it
J.R. What was it that raised the question or red flag?
• Well, he said the siblings owned the home
• But then he said their mother still lived there
• And, most importantly, he said that when she died, it would go to the children
J.R. Why did that seem so important to you?
• Well, from a legal standpoint, the siblings either own the home or they don't
• At least two possibilities from the wording of the question
• Do they own it, and are just letting their mother live there?
• Or is this a situation where the mother actually holds the life estate interest, and
the children don't have a possessory right until she passes away?
• In other words, at present they have the remainder interest only ?
• The second sentence of his question made me think it's the second possibility
J.R. So you said you contacted him; what did you find out?
• I asked him if he happened to have a copy of the deed to the property so that I
could look at it to answer his question
• He seemed a little confused as to why that should matter, but said no, he didn't
• So I asked him his name and his mother's, and the address of the property
J.R. Why did you do that?
• Well, if he needed an answer to his question, we would need to look at the real
estate records
• Specifically, the deed to this house
• That would show us the ownership of the property, which would answer the first
part of his question, about whether a present sale could be done during his
mother's lifetime
• Frankly, you would think just from the question and how it's worded that even if
the mother's name isn't still on the deed in some way, if he says that "after her
death" the home goes to the four children, he would know that it couldn't be sold2
out from under her while she's still alive
• But anyway, I did get the address for the property, and looked up the deed
J.R. And what did it show?
• The mother does indeed still own the life estate interest in the home
• And the four children hold the remainder interest
• We've talked about this several times before, you'll remember
• I'm sure this was done for estate planning purposes
• The life estate owner, or life tenant - in this case, the mother - has the full use
and benefit of this home as long as she lives
• The children only succeed to ownership after her death
• Even if she needs to go into a nursing home and go on medical assistance to
pay for her care, depending on when this life estate deed was signed, the house
might need to be rented and the rentals possibly used for her care
• That's a question for a Medicaid expert, which I am not
J.R. So it wouldn't be just the one child not wanting to sell that might block a
sale of this home right now, then?
• No, far from it
• The mother's consent would be needed also, along with all four siblings
• And the question states clearly that she still lives there
• So we make the assumption that she wants to continue to do so
• The three who want to sell would need to wait until her life estate interest is
ended before they could sell
J.R. Okay; then let's suppose for the sake of argument that it was a different
situation, where the mother either didn't own the home or didn't want to live there
any longer, and that three of the four children want to sell, and one doesn't. How
does that work?
• Let's take the second part of your scenario first
• If she was the life estate owner but just didn't want to live there any longer, she
still has a right to part of the sale proceeds when the place is sold
• That might come as an unpleasant surprise to the children who want to sell
• But if we presume the first part of your scenario, where she didn't own the home,
and three out of the four want to sell, that's the kind of rock on which families
tend to break apart, for sure
• Stating the obvious here, you can't sell 3/4 of a house
• If it were rural real estate, sometimes the ones who want to sell can go to court
to start what's called an action for partition
• That's essentially asking the court to divide the land up four ways
• Sometimes the land is all pasture or all crop land, and that can be done3
• Sometimes it can't be done because, for example, one person would end up with
good crop land, another with a slough, another with a mixture of crop and
pasture, and so on
• In that case, the court orders a sale
J.R. And that's probably what would happen with a house, you think?
• Realistically, probably it would
• I doubt if the court would let one family member prevent three others from
essentially receiving their inheritance
• Which is what we're really talking about here, I imagine
• Ideally, if the house matters so much to the dissenting brother, he probably
needs to see if he can come up with the funds to buy the other three out
• But none of that can happen until after their mother has passed away, because
their rights as remainder interest holders don't ripen into them becoming full title
owners until after her death

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