Can the executor put the deed to the home in his name only and his wife the Realtor to sell the home? - Estate Planning Law Questions and Answers- LawQA.com

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Can the executor put the deed to the home in his name only and his wife the Realtor to sell the home?

Last parent just passes 2 siblings 1 executor. The executor wants to put the deed to the home in his name only and his wife the Realtor to sell the home. Can he do this when the living trust states 50% split?

Answer By Robert I. Long
LAW OFFICE OF ROBERT I LONG
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In California, an executor would normally sell the property in the name of the estate, getting court confirmation of the sale to avoid his sibling second-guessing the sale price. Using wife as Realtor is permitted so long as it is an arm's length arrangement and she in fact performs the equivalent services of other Realtors in the area. I am puzzled just how he can get the house into his name only, since that implies he could just as easily convey it to a third party once a buyer is found.

Answer Applies to: California
Replied: 11/17/2014

WFB Legal Consulting, Inc.
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The Trust will have a trustee who must carry out the wishes of the Grantors, assuming the trust was funded.

Answer Applies to: California
Replied: 11/7/2014

Answer By Norman H. Green

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1. Is this a trust or an estate? A trustee manages a trust. An executor manages an estate, under supervision of the probate court. 2. One of the highest responsibilities is not to enter into transaction with the trust and to deal fairly with the beneficiaries. 3. He is NOT allowed to put the property into his own name. 4. He has no valid reason for putting it into his own name. 5. If this is an estate, then he can sell the property with the sibling's consent; the proceeds will be in the estate. 6. If this is a trust, then he can sell the property directly from the trust; the proceeds will be in the trust. Then he can divide and distribute the proceeds as appropriate. 7. Does the sibling consent to hiring the trustee's wife as broker? Will she charge no more than 5% as commission? Is she an appropriate broker, familiar with estate and trust sales and active in the neighborhood of the property? (for example, if the property is in Davis and she mostly works in Sacramento, she likely is not appropriate for a residence. Same for Hayward and Oakland, or for Anaheim and Costa Mesa. Probably hiring the wife is not a big problem, but changing title to the property is! 8. Note: If the property is valued at $250K and the total estate is $900K, then both parties might agree that he gets the property plus $200K, while the sibling gets $450K. If they agree, then ,of course, he gets the property and can do with it as he pleases.

Answer Applies to: California
Replied: 11/6/2014

Answer By George H. Shers

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Definitely not. Point out to him that he would technically have to pay income taxes if title is switched. ?If you have a Trust, then he is the trustee and you are the beneficiary; if it is a Will, he is the executor and once approved by the Court is the administrator. Frankly, I would tell him he should resign because he clearly does not know what his duties are, is acting illegally, should know what he is doing is wrong, and is trying to get 6% or what ever the real estate commission is from you. If the Trust states that each sibling is to get 50% of the house, as opposed to 50% of the proceeds, then he has absolutely no power to sell the house. He is either very ignorant of the law and real estate practices or a petty crook. He will probably over charge you for his fees, if any, as the Trustee. If he went through with what he proposes, his wife would lose her real estate license.

Answer Applies to: California
Replied: 11/6/2014

Answer By Frances Headley

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Being an executor or personal representative of an estate does not entitle that person to any of the property of the estate unless the executor is also a named beneficiary. The sale of the house is accomplished through the probate procedure not by putting the property into the name of the executor. A person involved in this estate should consult a probate attorney.

Answer Applies to: California
Replied: 11/6/2014

Answer By Victor Waid
Law Office Of Victor Waid
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The trustee/executor of the trust must follow the terms of the trust, and deed out the real estate from the trust to the two beneficiaries via a trustee's deed, if the property goes to specific designated beneficiaries. Do not let the executor do the very act you are alluding to; if he wants to go forward in the way he is suggesting, you will need to file a petition into probate court to stop him and to have him removed as trustee, with the alternate trustee stated in the trust appointed.

Answer Applies to: California
Replied: 11/6/2014

Answer By Scott Jordan

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No, the house should be in the name of the trust already. If not, the property will have to be probated. And, he should not use his wife as there is a conflict of interest. The Successor Trustee has a fiduciary duty to you and must avoid the appearance of an ethical conflict. Essentially, by hiring his wife, he is also benefiting from the sale when she receives her commission. Your brother should consult a probate attorney for advice on how to handle this matter. If he does not, he could be jeopardizing the estate through litigation, if you don't agree with what he is doing. It is best that the both of you work together, with the advice of an attorney, so that you maximize the inheritance.

Answer Applies to: California
Replied: 11/6/2014

Answer By Edwin K. Niles

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The customary method would be for the trustee (rather than executor) to sell in that capacity. However, he may feel that in order to satisfy the title co., which insures the title to the buyers, he is better off selling from himself the individual. Is the trustee handling this without a lawyer? If so, he may be making a mistake. If he has a lawyer, why not ask him/her?

Answer Applies to: California
Replied: 11/6/2014

Answer By Christine James
James Law Group
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No, and it could have tax consequences so I suggest the trustee get an attorney and do things by the book.

Answer Applies to: California
Replied: 11/6/2014

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