I am PR. I have an attorney who is not aggressive or creative enough. My father's house and contents are his ONLY assets and are very eligible for homestead protection. Problem is, my attorney and I are creditors. We will quit if there is now way to pay us. We want to sell the house before probate ends and 9 of 10 heirs have agreed to sell and to pay the PR, attorney and their share of mortgage, taxes and house upkeep. The 10th heir is unreasonable and REFUSES to sell! He will not communicate any more! Only about $5000 of my Dad's (other) creditors are making claims. It is in everybody's best interest to sell ASAP. Do I HAVE TO have to petition to protect the homestead? I would pay other creditors from my PR fee if need be. Can we appeal to the judge to leave homestead unprotected?
I agree that your attorney should be guiding you in this matter. The fact that your attorney is not giving you the answer you want to hear does not mean that your attorney is not aggressive or creative enough. It likely means they are giving you the correct answer.
You are a fiduciary and are charged with acting only in the best interest of the heirs and not yourself. The property is either homestead or it is not. If your mother owned and resided in the home at the time of her death (even if temporarily residing at a nursing facility), it is homestead and it is protected from creditors - including yourself. If you fail to obtain the homestead order and fail to protect the property from creditors, you are then breaching your duty as a fiduciary and may be personally liable to other heirs.
It is essential to your duties as PR to protect the assets and to act in the best interest of the estate and it's beneficiaries.
If you get the property determined to be homestead, the owners could always sue to partition and get an order to sell the property. You could get an agreement among the beneficiaries (in writing) ahead of time in which they all agreed to pay you and the attorney at closing from the sale proceeds.
You already have an attorney, so he/she should be able to better advise you regarding your options.
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