Can trustee wait to sell house in the trust?

Asked almost 3 years ago - San Diego, CA

My brother is the trustee of my dad's estate. Dad's home was in his trust when he died 3 months ago. The trust says that the estate shall be distributed upon his death but does not give a time frame. My brother and I are the only beneficiaries and we would like to rent out dad's home for a few years instead of selling it. Can we do this?

Attorney answers (4)

  1. Steven M Zelinger

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . Yes. You are both in agreement apparently and you are both beneficiaries so it would be in your best interest to realize the rent income now presumably with the goal of realizing a larger sale price later. That is not only legal but advisable. Of course, the trust would be responsible for taxes, upkeep, etc.

    This is not legal advice nor intended to create an attorney-client relationship.
  2. Steven J. Fromm

    Contributor Level 20

    2

    Lawyers agree

    Answered . Mr Zellinger offers sound advice. If both of you are in agreement, then this is permissible. One addtional point is that you need to get the house appraised at its date of death value for estate or inheritance tax purposes. Also, be aware that this date of death value can be used to depreciate the premises if you are renting. You will report the rental activity on Form 1041 for the trust.

    Hope this helps.

    Please remember to designate a best answer to your question.

    Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is

    LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia... more
  3. Lance Darrin Like

    Contributor Level 6

    2

    Lawyers agree

    Answered . Yes. However, make sure all necessary trust administration steps are taken. Many people mistakenly think when all assets are in trust nothing needs to be done legally. That is not necessarily the case. As one other attorney pointed out you need to get an appraisal and make sure final income tax returns are prepared, filed and any taxes paid. There may be other assets that were not in the trust that may require a court probate.

    Also, one possibility is to distribute the home to you and your brother as the trust beneficairies. Then the two of you own the home and you enter into a rental agreement. If you do so make sure your have adequate liability insurance. A twist on this option is you distribute it from the trust to the two of you. Then you and your brother form a limited liability comany (LLC) and transfer the home to the LLC. The LLC then owns it providiing liability protection to the two of you and the LLC would then lease to the tenant.

    Proper legal and tax advice shoudl be sought before proceeding with a final plan. Good luck.

  4. Thomas Edward Rossmeissl

    Pro

    Contributor Level 14

    Answered . You don't have to sell the house in order for it to be "distributed" from the trust. One option is to have the trustee distribute the home by way of a deed, granting you a 50% interest and granting your brother a 50% interest, which you will then hold as "tenants in common." It would be prudent to consider entering into a written joint ownership agreement, where you agree on how decisions will be made with regard to managing the property, how and when to sell, how to set rent, how to allocate repair expenses, buy-out rights, etc. You could also create a Limited Liability Company, and put the house in that entity, with you and your brother being co-owners. Either way, you would not have to sell the house now, in order to have it distributed from your dad's trust.

    You should consult with an experienced trusts and estates attorney near you for specific guidance.

    This general response is not intended to create an attorney-client relationship.

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