Salt Lake City, UT asked in Estate Planning for Utah

Q: Can a home be sold if living will states upon their death to sell home and split into 4s?

My mom has dementia, my older sister who lives out of state has power of attorney. My daughter who has lived with my mom the last 2 years taking care of her has also done her finances as my older sister would send them down for her to do. In my mothers living will i believe it states that upon her death to sell her home and divide it up between us 4 girls. Well the POA wants to sell her home now and use the money to pay for her assisted living costs. Can she sell this home if the living will states upon her death?

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2 Lawyer Answers
Wesley Winsor
Wesley Winsor
PREMIUM
Answered
  • Estate Planning Lawyer
  • Saint George, UT
  • Licensed in Utah

A: The short answer is "yes". Will's are only valid after the testator (the person who makes the will) dies. Up until that point, they lie dormant. A power of attorney creates an agency powers that can be effective immediately. So if your sister's agency powers are effective, then she has the right to sell the home now.

I hope this helps.

Wes

William Tyler Melling agrees with this answer

William Tyler Melling
William Tyler Melling
Answered
  • Estate Planning Lawyer
  • Cedar City, UT
  • Licensed in Utah

A: I'll make a couple of assumptions here: 1) That her Last Will and Testament is validly executed; and 2) her Power of Attorney is validly executed.

Your mother's Last Will and Testament is only effective upon her death. Further, the agent under a Power of Attorney has a duty to act in your mother's best interests, including selling the home if needed to cover the expenses of her care.

One problem that the agent may have is that title companies will not usually insure the sale of real estate by an agent operating under a Power of Attorney, meaning that a buyer could not obtain a loan on the purchase of the home. The only exception is if the Power of Attorney was: 1) signed by your mother within the last year; AND 2) contains the legal description of the home.

If funds are needed to cover her care, the agent may instead look into finding a renter or other way to generate income from the property while your mother is alive. Either way, during your mother's life or after her death, a court order will likely be required to sell the home. That process is called a conservatorship during your mother's lifetime, and probate after her death. The agent will probably need to hire an attorney in her area to handle this matter regardless.

I hope this is helpful.

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