Legal Question in Wills and Trusts in Tennessee
Property Inheritence--Disposition of Will
My mother died 7 months ago and left her home to my siblings and me. My brother is power of attorney and executor. He has lived in her house rent-free since he became power of attorney, and is still living there.
The house should either have been bought by my brother and the money divided among the other siblings and myself, or it should have put on the market and sold and the money divided equally among all of us.
As stated above, he is still living there (rent-free)and has made no effort to purchase or sell the house.
He recently discovered he is very ill, and is now using that ''reason'' for not complying to the will. What can we do? Also, should he have to pay rent to us for the past 7 months? Thanks.
2 Answers from Attorneys
Re: Property Inheritence--Disposition of Will
If your mother's Will does not contain what is known as a power of sale clause, the Executor cannot sell the house and divide the proceeds during the time that the estate is open unless there are debts of the estate that personal property cannot pay for. In other words, the estate must be closed and each sibling will be vested with a pro rata portion of title in the house at which time the house can then be sold. As far as the Executor living in the house rent free, he shoud compensate the estate for rent.
Re: Property Inheritence--Disposition of Will
If the will does not grant the executor any authority over the real estate, and if there is no risk of any creditors of the estate bringing a claim that could deplete the non-real estate assets of the estate, the real estate passed to the persons named as the receipients of that bequest at the time of her death. If the real estate is not devised under the will by a specific bequest or a residual clause (not likely, but possible), then the real property would still pass immediately upon your mother's death, but to her heirs at law (still probably the children you have mentioned). What this means is that you, or any or all of your siblings, could probably immediately either evict your brother from the property (through a legal action known as "detainer"), or could force the sale of the property through a court-ordered auction, with proceeds divided according to shares of ownership. In either case, you should be able to recover your expenses and might make a claim for unpaid rent (although this is less certain). If you properly present these options to your brother, it might give him the reason he needs to work this out with the rest of the family. I would also need to know if the will has been probated (filed with probate court) and review the will itself to be sure of this advice. I hope this helps. If you have questions, please do not hesitate to contact me. Holland McKinnie, McKinnie & Moore, PLC, Franklin, Tennessee, [email protected]
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