Legal Question in Wills and Trusts in New York
Deed in childrens names
After my father passed away my mother put me and my two sisters names on the deed along with hers. She also included this info in her will. She appointed her nephew (a lawyer) to be the executor and my youngest sister (age 39) to be the trustee and me (age 55) to be the alternate trustee. My other sister (age 57) has no title. The trustee has been living in my mothers house with her husband and 4 children for the past 4 years. My mother has been paying the property tax and homeowners ins. all this time. My sister and her husband are working and have good jobs but my mother doesn't wont to collect rent from them. She says she just wants to help them out. What I want to know is....after my mother passes away, can the trustee have control over the house because she has been living there even though the deed says the house is in all 3 names ? Thank you for your time.
2 Answers from Attorneys
Re: Deed in childrens names
In answer to your question; the trustee has no property rights to the house. You are the owners and you get to make the decisions.
The Trustee 'works' for your mother until her will is probated.
There is a small issue: if all three names are on the will, then the property is owned 'in common' and when your mother passes, the title goes to you and your sister and bypasses probate. The house is never in her estate and the trustee, executor, etc never have any rights or legal interest.
The same day your mother dies, you and your sister get 100% interest and control of the house.
Do not let the attorney or executor overwhelm you.
Please feel free to contact me directly with any further questions or a clarification.
Re: Deed in childrens names
I am a little confused: you say all names are on the Deed, then talk about trustees? Was the title put in a trust registration, or are the names on the Deed as individuals? This distinction is critical to answer your questions. If the title is in a trust name, is there some formal trust document? If so, the answers you seek may be contained in the terms and provisions of that document; i.e., what happens when Mom passes away. If there is no trust document, and the names are as individuals, the answers depend upon the language of the title in the Deed, as there are several ways title can be recorded; as tenants in common, or as joint tenants with right of surivorship. There may be subtle differences between these registrations that also bear on your questions. If no trust document, when Mom passes, the owners would be like business partners, in a joint venture (the home ownership). Costs would be equally shared, but a resident owner would be subject to paying rent to the entity. If the parties cannot agree on rent terms, or if and when the house is to be sold, a suit for partition may be required, which is ensentially the assertion of rights between joint owners, saying either someone buys the house from the others, or the house be listed for sale with the proceeds to be split among the owners. A rent for occupancy would be established by the Court until the final decision on sale or purchase by one owner is made and completed. Hopefully, the siblings can work things out and not need to resort to a Court. All of this is meaningless if there is something in writing spelling out all details of what happens when Mom passes. By the way, it is not unusual for someone like Mom to continue to pay the bills while she is living in the house and able to do so.
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