Legal Question in Wills and Trusts in Pennsylvania

My husband, I and my deceased mother own vacation property as tenants in common. House actively on the real estate market and mortgage, heat, taxes and association fees are being paid by the estate as my mother held the mortgage in her name only. However it is deeded in all three of our names. The lawyer says If I rent the property short term(say weekends only) until it sells, then I would have to relinquish all rents to estate. There is another sibling involved in the will and that sibling has done nothing to help settle the estate, as I am executrix. My questions is why do I have To forfeit 100 percent of proceeds as I am the one screening potential renters, collecting rents, dealing with them if there is a problem, inspecting and returning securities, and cleaning the property after each rental. The house belongs to my husband and I also, can we de decide to rent it as we like until it sells? We reside in pa.


Asked on 1/16/16, 8:26 am

1 Answer from Attorneys

Its not ethical for another lawyer to interfere or second guess the estate lawyer when a lawyer on a public bulletin board has not seen any of the documents or knows what is going on.

You have misstated what your lawyer told you. You are not "forfeiting" anything. The rents/profits go to the estate, not you personally. You want your cake and to eat it too. If the estate is paying the bills, then the estate has to receive the rental income and after all the estate bills are paid the net assets of the estate will be divided as per the will. Of course, the executrix (which is you) gets to take a commission and that is paid as a priority before any distributions to the heirs.

The only other way to do this is that the heirs of the property (which is you, your husband and your mother's estate) own as tenants in common. Which means that 2/3rd of the property is owned by you and your husband and 1/3rd by the mother's estate. So really, 2/3rd of the bills should be paid by you. Generally, heirs inherit land subject to the mortgage and that means that the heirs of the property are liable for the mortgage. I don't know who gets the land under the will, but if you and your husband then you should be paying the mortgage or at least a part of it and not the estate.

However, you and your husband can buy the 1/3rd share of your mother and assume paying 100% of the mortgage. You can then retain 100% of the profits.

It does not matter where you live. What matters is where your mother lived at the time of her demise and where the vacation property is located. The primary estate should be set up where your mother lived at the time of her death and that is the state whose estate/probate law will apply as far as distributing your mother's assets and which regulates payment of claims against the estate and commissions owed to the executrix. An ancillary estate may need to be probated in the state where the vacation property is located in order for you to sell the property.

I suggest that as you have hired estate counsel, if he is doing his job properly, that you discuss the options with him. If he is not doing his job properly, then you are free to fire him and find someone else.

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Answered on 1/16/16, 10:06 pm


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