Understanding Property Deeds and Inheritance

Hi Paul - My sister and I inherited our father’s home, per his Will. Our mother died before him. There is no mortgage. His Will is probated, and my sister is Executor. I want to sell the house and take my half of the proceeds. My sister wants to keep the home to rent it out. She has no experience with rentals. The house will need extensive renovations. She can’t afford to buy me out or to do renovations without getting a loan, but I don’t think she’ll qualify for a loan. Does the deed have to be changed to both our names first in order to sell the home? Would I become responsible for taxes and maintenance? How can I influence her to buy me out? – K.D.

When it comes to inheriting property deeds and inheritance, understanding the legalities can be complex. As a Certified Elder Law Attorney (CELA), I can provide some insight into your situation. I only work with families in cooperation.

First, it’s important to understand that the Executor of a Will has a fiduciary duty to act in the best interest of the estate and its beneficiaries. This includes managing assets like real estate until they can be properly handled under the instructions in the Will. One task for you, then, is to review the Will to see if your father required that the house be sold by the Executor or if the Will provided a mechanism for the buy-out. If so, your sister must follow those instructions.

Second, if we assume the Will’s terms were general (like “I leave all my estate in equal shares to my two daughters”, without more specific requirements) then the Executor has a variety of options. She can:

1. Sell the house on the open market as Executor, from the estate, and split the funds equally;

2. Split all the estate’s value equally, but not give each of you half of each item. Your father said “equal shares” but that does not require that the house be split equally. If the house is worth $250k and he also left a savings account with $250k, you could get the savings and she could get the house;

3. Buy your share of the house with her own money, or money she borrows; or

4. Deed the house into both of your names as co-owners. If the deed is transferred into both your names, you would both become equally responsible for property taxes and maintenance in the future.

It is important for you to realize that the lawyer who assisted with the probate represents your sister, not you. It would be a good idea for you to retain your own legal counsel to be sure you are getting proper guidance on your options and potential consequences. You want to avoid a court battle, but ultimately if you cannot find a solution the law supports having a Judge impose a solution under the Uniform Partition of Heirs Property Act.

After you consult with your lawyer, you could have a discussion with your sister, one on one, about your concerns and intentions. The two of you may be able to accommodate each other’s goals. For instance, if your sister cannot get a bank loan you might allow her to buy out your share over time by giving you a promissory note secured by the house, then making payments (with interest) over a number of years. Line up the options with your lawyer, then start negotiating.

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Paul Premack is a Certified Elder Law Attorney for Estate Planning, Trusts, and Probate. Paul is licensed to practice law in Texas and Washington. Visit our website at www.Premack.com to read the archive of articles or to make an appointment, or call us at 210-826-1122 (Texas) or 206-905-1122 (Washington).

Article published on October 13, 2023