Orange Park, FL asked in Real Estate Law for Kansas

Q: Mother signed the deed to her house to my brother but the finacing is in her name, she died,

now he is selling the house "by owner". I am the executor. As executor, do I have the right to sell this house? Legally- can he sell the house and keep the money? What about the loan?

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1 Lawyer Answer

Scott C. Stockwell

  • Lawrence, KS
  • Licensed in Kansas

A: You describe a set of circumstances in which the details (facts) will be critical to answering your question. You should consult with an attorney licensed in the state in which your mother's estate is located.

A deed making a present transfer and recorded prior to the grantor's death could make a transfer to an individual for that person's own benefit or in trust or constructive trust, again depending upon what was written or said or both. If a transfer is knowingly made, without deception and with the full mental capacity of grantor, the grantee would be the "owner". An executor who was named in the will and has been appointed by a probate court, would have control over the assets held in the name of the deceased and any beneficial interest of the deceased or the estate.

If a real property has a valid mortgage against the property, and the promissory note for which it is held remains unpaid, the mortgage could potentially be enforced against the property if the promissory note is delinquent. If the property is sold, the mortgage holder would need to be paid in order to obtain a mortgage release.

The issues in this matter need further factual detail to be fully understood. As to the capacity in which your brother holds title in the property, the responsibility for or liability to pay the promissory note, the right to proceeds from the sale, and other questions, you should consult with an attorney.

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