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Six siblings inherited my father's house. One won't sell. Only I can afford upkeep or mortgage. Can I buy the note & foreclose?

Tampa, FL |

I am the personal representative. Probate is ongoing. The estate has no other assets but the homestead (with a mortgage 1/3 the home's value). Only I can afford the cost of upkeep and paying the mortgage. I do not want to pay to maintain the homestead unless all agree to 1) sell the house, 2) reimburse me for attorney's fees, mortgage costs, taxes, upkeep, and 3) eventually pay the PR fee listed in the will. I can force the sale by partition (co$tly), but still not recover my PR fee (or other costs?). Instead, can I buy the mortgage and foreclose on it myself? Do I need everyone's permission for that too? What about buying the tax certificate and sitting on the house for two years? The one brother says he will not sell as long as I would benefit from the sale. Help!

Attorney Answers 4


I have encountered this problem before and the only way I have ever helped a client resolve it is through partition which, by the way, always works. Outside of the probate arena I have, several times, had clients try to purchase mortgages from commercial lenders because there is a property they have wanted that is abandoned. We have never been able to get a commercial lender to sell us the paper. I think it must have to do with their regulations or insurance on that paper.

In your situation I don't see a foreclosure action costing substantially less, or necessarily any less, than a partition. They are both real estate litigation. I am unfamiliar with taking property through tax certificates. I don't see any easy way for your to pull out your personal representative fees. Perhaps you could try that through more litigation but I doubt it's cost effective.

I think this boils down to a cost effective business analysis, is it financially worthwhile to get the house through litigation.

The contents of this answer should be considered friendly advice, not legal advice and the answer should not be construed to constitute an attorney-client relationship. If you'd like actual legal advice, call me at 954-567-4100. Also, if you liked this answer did, be sure to click the thumbs-up button

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Thanks for your answer. It seems like I cannot recover PR fees via partition, but only by agreement - despite all my work for months now. Why should I do more then? Why risk my cash if not to be re-imbursed? Can I threaten to pull out as PR and let the home be foreclosed unless they agree to pay PR fees and expenses? How can I convince my siblings to pay me for months of effort?

Marian Audrey Lindquist

Marian Audrey Lindquist


I am sure you have a lawyer for the probate, so you can talk to her about your options If the only asset a Florida estate has if Florida real property I don't see where that estate has any money to pay probate fees or costs. I'd love to hear another lawyer tell me that I'm wrong and explain why.


Does the will give you the flexibility to sell the real estate if the estate is illiquid? That is the real question. You need to speak with an estates attorney to have the will reviewed to see if you have the right as executor to sell the real estate either under the will or under FL law. In addition, it may be if you cannot do so under the will, you can have the attorney petition the probate court for permission to sell. You should not be handling this estate without estate counsel, especially in FL where they have some very specific and sometimes idiosyncratic rules and procedures.

For a sense of what is involved in administering an estate in most states, please see the following two articles: Estate & Probate Administration: Do Not Try This On Your Own at and Pennsylvania Probate & Estate Administration: Executor Duties at

Hope this helps.

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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 , his website for more tax, estate and business articles is and his blog is

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I am going to assume that you have an attorney since the probate has already started. If that is true-it is not proper for other attorneys to comment and offer advice.
The best bet for you is to discuss this with your attorney and come up with solution that would not put you into a conflict position which could include resigning as PR.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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You do want to be careful because, as personal representative, you have a fiduciary obligation to the estate and its beneficiaries. Pursuing a tax deed or foreclosure on the property when you're personal representative could create a much more complicated situation that creates a greater liability and more litigation for you. You may want to give greater thought to whether this particular property is worth such a great deal of risk to you.

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