Legal Question in Real Estate Law in California
Lakeport Property
When my father passed away, he appointed my brother executor of his estate, there was a paragraph in ''will'' pertaining to 30 acres, in which he stated he wanted it split equally between my brother, sister and myself. Unbenounced to anyone my father had never taken his mother or our mother off the deed, although his mother, and our mother,had both been paid off prior to his passing. Now according to the deed his mother owned 51%, and my father and mother the remaining 49%. My brother decided to sell the property without consulting my sister and myself, instead he got our grandmother and mother to sign a release agreeing with the sale of the property, even though they did not have the right to decide, they had no real interest in the property. I found out about the sale when my brother phoned, said I would be receiving some papers in the mail, and I should just sign them and return them to him ASAP! I received them, read them, did not agree with the sale, so refused to sign them, now my brother and broker are screaming ''Law Suit'' if I do not sign! How did my brother open escrow without my sister and my consent? and if he could do that, why does he need my consent now, in order to close escrow? Who is liable for broker fees if sued?
3 Answers from Attorneys
Re: Lakeport Property
I would really like to see the papers you received. Perhaps both mothers signed a deed transferring title back to your father (since they had already received payment and are honest). Now your brother is asking the beneficiaries (you) to agree to the sale so that he can make some cash.
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Re: Lakeport Property
Depending on how much the property is worth, you might bring a suit for partition or a determination of each of your rights to a piece of the property. Then you file with the court and record with the county recorder a lis pendens that will hold up sale of the property until the lawsuit is decided. Once the lawsuit is filed, you can suggest that you all go to a mediator to hash out your differences and find a creative way to resolve this matter. Dividing (or selling) property in estates sometimes brings out the worst in otherwise amicable siblings.
Re: Lakeport Property
My reading of the facts produces a conclusion quite different from Mr. Cohen's, but I could be wrong.
The issue here, if there is one, is what your father's will actually says about the 30 acres. If it simply leaves the land to the three of you, you become cotenants when probate is completed, probably as tenants in common, but a joint tenancy could also be created if the three of you so agreed. If, however, as seems more likely from the way your question is worded, the language of the will instructs the executor to "split equally" (or other words indicating a division of the property and not a cotenancy), your brother is doing the right thing by listing and selling the land.
True, "split equally" could also mean to subdivide into three 10-acre parcels, or three parcels of approximately equal value, rather than to sell and divide the net proceeds. In the 19th Century, that's exactly what would have happened. But now, subdivision is severely restricted by zoning, road access, planning and other issues, including the Subdivision Map Act, and even in rural Lake County a 30-acre parcel may not be legally or practically capable of subdivision, in which case sale is the modern alternative.
It sounds to me as though your brother is dutifully carrying out the instructions in your father's will. If he is the executor, he has the right and the duty to sell the property, if the will so instructs. See Probate Code section 10511. He is, of course, subject to a duty to exercise care and fairness.
Of course, he also should be keeping you informed of his progress, and your upset is no doubt due in part to not being kept up to date as the sale plans progressed.
I cannot see how any of that stuff about mother and grandmother erroneously (or through carelessness or laxity) being left 'on title' when they should have been removed long ago makes an ounce of difference. The only effect is to make your brother's task more difficult.
As to the papers you're being asked to sign in order to close escrow, I cannot express an opinion, since I have no idea what they might be. I strongly recommend that you consult an attorney who practices in the area of probate and administration of estates in order to either assert your rights (if you have any) to stop the sale, or to avoid the costly mistake of opposing it if, as seems likely, you shouldn't.
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