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?
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.
William Tyler Melling agrees with this answer
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.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.