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My mother just recently passed away she had no living will. She has 5 children she a son who lives in her home now. Who has the

Houston, TX |

right to decide what happens to the property (sell or rent)?

Attorney Answers 5


  1. A "living will" is not the issue. That is a very poor term used to describe a Directive to Physicians to Discontinue Life Support. So, I am going to assume that you simply mean that your mother died without a Will. I am also going to assume that she was not married at the time of her death since you do not mention a husband surviving her. Her five children inherit her home and all other property equally. There will need to be some type of probate proceeding (there are a couple of options) or an alternative to probate to clear the title to the real estate. Part of the probate process makes sure that all of her debts are paid and it may be necessary for the house to be sold to pay those debts. The person in charge of an estate like this is called the Administrator. Any of the children can apply to be appointed the administrator. A lawyer will be necessary. This cannot be done without representation. But, your real question was about who decides if the house is rented or sold. If the house does not have to be sold to pay debts and it is "distributed" to the 5 children, they will all have to be in agreement as to what happens to the house. It is like a 5 person partnership. It can result in conflict. For this reason it might be better to sell the house and divide the proceeds. All 5 will be responsible for property taxes too.

    DISCLAIMER: This is not specific legal advice and does not establish an attorney/client relationship.


  2. Mr Paxton offers sound advice. Holding onto the property by the 5 children is a recipe for disaster. Do not consider it for one minute as these arrangement result in family discord and eventually lawsuits and in the worst case scenario irretrievably broken relationships. As to who decises, it would be the administrator or administrators that the family agree upon. You need to get to a good estate planning attorney in TX to get first hand guidance and assistance.

    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, his email address is sjfpc@comcast.net , for more tax, estate and business articles visit his website www.sjfpc.com. and blog

    LEGAL DISCLAIMER 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 <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.


  3. When a decedent dies without a will, state intestate succession law governs. If your mom died unmarried, most likely the 5 children inherit equally. In any case, a local estates attorney is essential to advise the children on options and commence estate administration. Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law.


  4. In addition to the comments by Messrs. Paxton and Fromm, you should immediately seek the advice of legal counsel. It is September and property tax statements will be coming out in October and November, with the tax payments due by January 31 of next year. A common problem after the death of a parent is who is going to pay the taxes on the family home. An even bigger problem is whether anyone has the financial resources to pay the taxes. If the taxes are being escrowed by a mortgage company, then who is paying the monthly note. In short, a common problem for a lot of beneficiaries is that they wait too long to probate an estate, and then the family home is lost to either foreclosure by the mortgage company for nonpayment of the note or foreclosure by the taxing authorities for nonpayment of taxes. While tax authorities are much slower to foreclose than mortgage companies, the penalties and interest on the unpaid taxes often make it difficult, if not in possible, for the beneficiaries to bring the taxes current. The result is that the family home is lost. Given these potential problems, along with a host of other issues that are beyond the scope of this response, you should retain a probate attorney without delay.

    The comment provided above is intended as general information and IS NOT LEGAL ADVICE. You should consult an attorney for advice regarding your individual situation. If your question concerns Estate Planning, Trusts, Elder Law, Probate, Trust Adminstration, Guardianship, Litigation, or Real Estate, and is governed by the laws of the State of Texas, then you might wish to contact our firm, which is The Mendel Law Firm, L.P., 1155 Dairy Ashford, Suite 104, Houston, TX 77079, O: 281-759-3213, F: 281-759-3214, info@mendellawfirm.com. Stephen A. Mendel is licensed by the State Bar of Texas.


  5. The personal representative appointed to administer her estate has the right.

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