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Can executor sell real property of deceased even though LWT states it is to be divided between heirs?

Cornelia, GA |

2 heirs each inherit 1/2 interest in real property of deceased. However, the LWT also gives the executrix the right to dispose of and sell the residual estate (of which the property is a part) as "she deems necessary" without the permission of or consultation with the other heir. The other heir would still get a 1/2 share of proceeds, but is it necessary to give him a 1/2 interest first by executor's deed? He'd refuse to sell if given a 1/2 interest in property and would not buy out the other 1/2, either. Guy's a total jerk. Ultimately the property will end up in a forced partition. Is selling the property first with the proceeds split between the heirs an option?

Attorney Answers 3

Posted

I'm not sure what you mean by an LWT. If there is a Will which merely states that the estate's remaining assets are to be distributed to the beneficiaries in equal shares, and the Will also authorizes the Executor to dispose of and sell estate assets as she deems necessary, then it sounds like the Executor should be able to sell any real estate owned by the estate without first distributing any interest in the real estate. The Executor, if there are enough assets, may also be able to allocate all of that parcel of real estate to the beneficiary who wants it, if one wants to keep it and the other doesn't. But it is not possible for me to actually answer your question without seeing the Will itself, because so much depends on exactly how the Will is written. If the Executor does not have an attorney helping, she should get one as soon as possible. If the attorney can't answer this question, then the Executor may need a new attorney.

This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship. The intent is only to provide general information. You should be aware that you cannot rely on this answer to provide you with any protection against tax penalties. You should always consult your own attorney in order to obtain legal advice.

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2 comments

James P. Frederick

James P. Frederick

Posted

I assume that is shorthand for Last Will and Testament... ;-)

Loraine M. DiSalvo

Loraine M. DiSalvo

Posted

Makes sense.

Posted

The answer depends completely on the exact wording of the will, and in some cases on what else needs doing (such as paying debt). The executor definitely needs a lawyer's help on this one.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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Posted

As I understand your question, the Will of the deceased person divided this parcel of real estate equally among two heirs. The Executrix of the Estate is now considering the exercise of the discretion granted to her within the Will to sell this parcel, and the heir would rather have his or her portion of the land itself (instead of his or her portion of the proceeds from the sale of the land). You'd like to know whether the Executrix is within her powers to do this.

Unfortunately, the answer is: it depends. Specifically, it depends on how the Will is written. For example, if the Will states "All my interest in 123 Redfish Lane shall be equally divided among Joe and Cathy," that's likely a specific bequest. If that's the case, the discretion to sell the property wouldn't apply because the gift would not be considered a part of the residue.

Without seeing the Will, though, it's impossible to detail the heir's rights and options, and impossible to say with certainty what category of bequest we're discussing here. I recommend consulting an attorney with experience in probate and will drafting.

Best of luck with this situation.

If you find this answer helpful, please mark it here on AVVO as helpful. Now for the fine print: In answering you, I am attempting to communicate general legal information and am not representing you. Here on AVVO, I'm limited to the facts and details that you provide to me, and it's impossible for me to get the "big picture" that I would create based on a consultation with you. So, it is possible that my answers here, while meant to be helpful, may in some cases be incomplete or inaccurate. Accordingly, I highly recommend that you retain legal counsel rather than rely on the answers here. I'd be happy to assist you further, so please feel free to contact me using the contact information listed above. Any information in this communication is for discussion purposes only, and is not offered as legal advice. You have no right to rely on the information contained in this communication and no attorney-client relationship is formed. Finally, nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein.

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