If a will has property that is divided among five people, can one person sell it without their consent? 32 Answers as of August 20, 2012

My father left a will that gave his third wife 50 percent of his estate, which mostly involves our childhood home that my he purchased with my mother. We, his children, are to split the remaining 50 percent among ourselves. His widow has not probated the will, so we haven't seen it yet, we were just told it says this. She is now attempting to sell the house without the will being probated and she has not paid taxes on this house in nearly three years. Can she sell the house?

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Law Offices of Michael N. Stafford | Michael N. Stafford
I suggest you consult with an attorney to review the will and to determine your right and remedies. She can not sell the property unless she is the owner or the executor of the estate.
Answer Applies to: California
Replied: 8/20/2012
Bullivant Houser Bailey PC
Bullivant Houser Bailey PC | Darin Christensen
If there is a probate, she probably can sell the house and then divide the proceeds in the specified portions. Otherwise, she can't unless the house was tenancy by the entireties property (a form of joint ownership) with your father in which case she owns the entire property and can do what she wants with it regardless of what the will says.
Answer Applies to: Oregon
Replied: 8/20/2012
Jay W. Moreland, P.A.
Jay W. Moreland, P.A. | Jay W. Moreland
There is not enough information to answer this question. The home may have been titled in the name of your father and his widow. If that is the case, upon the death of your father the property became his widow's.

It will not be part of his estate. In that case since the house is hers, she can sell it. It could be homestead property. In that case his widow will have a life estate in the property with a remainder (after her death) to his children.

In that case the widow can only sell the life estate which has little value as no one knows how long she will live. In that case the widow would not be able to sell the whole thing without the consent of the children.

It could also be part of his estate without being homestead. In that case the property will pass according to the will whatever it says.
Answer Applies to: Florida
Replied: 8/20/2012
Horn & Johnsen SC
Horn & Johnsen SC | Dera L. Johnsen-Tracy
If the real estate is still titled in your father's name, then your step-mother will have no legal authority to sell the home until a probate proceeding has been initiated and someone has been named as the personal representative (i.e., executor) of your father's estate.

However, if the real estate is not titled in your father's name, then he may have added his wife as a co-owner of the property in joint tenancy during his lifetime, in which case the home would not be included as an asset of his probate estate and your step-mother would be able to sell the home at her discretion.

You can contact the Register of Deeds in the county in which the real estate is located to determine current ownership of the property. If you discover that the property is indeed still titled in your father's name, then you may wish to contact a probate attorney to initiate a probate proceeding for your father's estate as an interested person.
Answer Applies to: Wisconsin
Replied: 8/20/2012
Lisa L. Hogreve, LC | Lisa L. Hogreve
It depends on how the house was titled. It is possible that after making his will, your father created a tenancy by the entirety (titled home to himself and his third wife, as "husband and wife"). In that case, the home would have passed to his wife upon death and would not be part of the probate estate. Also, if this was the couple's homestead property, leaving 50% to his wife and 50% of the home to his children would not be an effective gift. In Florida, the husband cannot devise the homestead in the manner you describe. The wife must get at least a life estate in the homestead.
Answer Applies to: Florida
Replied: 8/20/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    You need to find an attorney to open a probate estate.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    If the property deed was in both names as Joint Tenants with Rights of Suvivorshop then she can sell the house without going through probate. If not, she must go through probate. Do you have a copy of the deed? The Last Will & Testament must be probated. The Executor or Executrix MUST be appointed for property to be sold.
    Answer Applies to: Georgia
    Replied: 8/20/2012
    Law Offices of Charles R. Perry
    Law Offices of Charles R. Perry | Charles R. Perry
    Assuming the house was your father's separate property, then absent something you have not told me, your father's third wife cannot sell the home.

    This assumption regarding separate property is important, however, because the rules change if the house became the community property of your father and his third wife.

    In addition, there may be other facts that would change my opinion, but I think they are rather unlikely.

    I would go to the County Recorder and get a copy of the most recent deed for the house. That will tell you if the house was in your father's name, or in the name of your father and his third wife.

    If you know the name of the person who drafted the will, I would contact that person to see if you can get a copy.

    I would also contact a probate lawyer immediately, so that he can explain your rights to you. The lawyer may be able to help you get a copy of the deed and the will, if you are unable to do so ahead of time.

    The issue is pressing because of the unpaid taxes. You do not want to risk a foreclosure because of the tax lien. It may be that a letter to your father's third wife is all that it takes to straighten this out and get it on the right path.
    Answer Applies to: California
    Replied: 8/20/2012
    Law Offices of Gerald A. Bagazinski
    Law Offices of Gerald A. Bagazinski | Gerald A. Bagazinski
    Contact a lawyer fast. The property could be lost to the county for past due taxes. An estate should be opened immediately. If you have any questions, please contact me. K
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Frederick & Frederick PLC | James P Frederick
    Without seeing the documents, it is impossible to say. It is not clear how this property is titled or whether probate is necessary or not. You can check the online title records to determine how it is titled. Without a copy of the Will, there is no way to determine what your rights are, or whether you have rights at all. If there IS a Will, it is supposed to be filed with the court, shortly after death. This is true whether there is a probate file opened or not.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    Generally The Court appoints a personal representative of the estate who is responsible to gather all of the assets, sell them if necessary, pay all taxes and expenses and then distribute the proceeds to the rightful heirs. Was she appointed personal representative?? Please contact a probate attorney for more information.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    The Law Offices of Tres A. Porter | Tres A. Porter
    It is doubtful she would be able to without a Court order. Unless she sells it for cash to a third party it is difficult to sell real property that you don't legally own.
    Answer Applies to: California
    Replied: 8/20/2012
    Slotnick & Schwartz
    Slotnick & Schwartz | Leonard T. Schwartz
    No. Action should be taken to challenge her and demand production of the will.
    Answer Applies to: New Jersey
    Replied: 8/20/2012
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    If the house was ONLY in your father's name, then it will have to go through probate, and if step-mother is the person named to serve as personal representative then yes, once probate is opened she can sell the house.

    Many lawyers would petition the court for approval of the sale, but it is not necessary. If you learn the house is on the market, you could petition the court NOT to allow the sale, but frankly the sale of the house is probably the best idea.

    If you kids can buy your step-mother's half for market value, that would fly. But ownership of real property split five ways is a civil war waiting to happen, so if you kids can't buy out your step-mother you should give careful thought to just letting it go.

    If your father transferred half the house to his spouse while he was alive (most married couples hold real property as tenants by the entirety) then your step-mother owns the whole house now, (the will would not affect ownership of the house) and she can do what she wants.
    Answer Applies to: Oregon
    Replied: 8/20/2012
    Candace K Ladley, Attorney | Candace Kay Ladley
    First, you need to find out how the title to the property is held. If it is held as joint tenants with his wife, the property is hers are the surviving joint tenant and is not part of his estate.

    If the property is in your father's name alone, then it will have to go through a probate court proceeding before it can be sold and is part of his estate. We can check those records for you.

    Also, check the local Superior Court records to see if his wife lodged your father's Will with the court. She is required to do so within 30 days of his death. You can always call her and ask her for a copy of the Will.

    If she won't provide it to you, then call us to represent you and we will then get a copy of the Will for you.
    Answer Applies to: California
    Replied: 8/20/2012
    Benjamin D Gordon, Attorney at Law
    Benjamin D Gordon, Attorney at Law | Benjamin D Gordon
    That will depend on who technically owns the house. If your father and your stepmother owned the house as joint tenants with right of survivorship, then the property will have passed to her outside of his will, and she does have the right to sell it.

    If she did not receive title to the home through a right of survivorship, then it cannot be sold without probating the will. Whoever is named as your father's personal representative will likely have the authority to determine whether or not to sell the home. If it is sold, the personal representative will be obligated to divide the proceeds as you have outlined.
    Answer Applies to: Utah
    Replied: 8/20/2012
    Stephens Gourley & Bywater | David A. Stephens
    She cannot sell the house unless she is the sole owner. Otherwise she will need consent or a court order to sell the house.
    Answer Applies to: Nevada
    Replied: 8/20/2012
    O'Keefe Legal Services, L.L.C.
    O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
    In Maryland, if your father's surviving spouse owned the house jointly with survivorship rights, then the house should pass to her by operation of law and not through his will's terms. If the house passed to her by operation of law, then the will may be irrelevant to that asset, and she may have the right to sell the house, because she may be the sole titleholder/owner.
    Answer Applies to: Maryland
    Replied: 8/20/2012
    Paul Nidich, Attorney at law
    Paul Nidich, Attorney at law | Paul Nidich
    First, real estate is governed by the title. If the title to the property was in your father's name, alone, then the will comes into play.

    If your father transferred the tile to himself and his third wife, it would depend if the title was in "joint and survivorship," the will has no effect.

    The property becomes hers, no matter what the will says. Do you know where the most recent original will of your father's is located?

    Whoever has the will needs to file it in probate court. You might need to hire a probate attorney to work out these complications. Good luck.
    Answer Applies to: Ohio
    Replied: 8/20/2012
    Mike Yeksavich | Mike Yeksavich
    Someone needs to file a probate case to determine if there is a will or not. Court approval may be needed to sell the property. How come you and your siblings have not filed a probate?
    Answer Applies to: Oklahoma
    Replied: 8/20/2012
    DEAN T. JENNINGS, P.C.
    DEAN T. JENNINGS, P.C. | Dean T Jennings
    Open up your father's estate yourselves and demand that the Will be presented to the Court.
    Answer Applies to: Iowa
    Replied: 8/20/2012
    Gordon F. Gault PC | Gordon F Gault
    She can sell the house without probate only if all of you agree. If you do not agree she needs probate authority to sell the house.
    Answer Applies to: Illinois
    Replied: 8/20/2012
    GOLD & ASSOCIATES, P.C.
    GOLD & ASSOCIATES, P.C. | KENNETH GOLD
    You not only need to read the Will but also how the assets are held. Only assets in your fathers name alone will pass under the Will. Possibly the house passed right to her. If their are probate assets and she doesn't act then the kids can.

    Once assets are in probate the personal representative can act to sell them. You haven't fully given the facts and there are a lot of issues involved. If you would like, please contact me to discuss them further.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Martin Barnes - Attorney at Law
    Martin Barnes - Attorney at Law | Martin Barnes
    I am sorry for the loss of your father. Since you haven't actually seen the Will or the provisions that address your childhood home, it is difficult to answer.

    Also, the manner in which the house was titled may provide his widow with the ability to sell the house.

    For example, if your father and his third wife owned the house as joint tenants; title (ownership) of the house would pass directly to his wife, outside of the provisions of the will.

    I advise you to meet with an Indiana attorney to make sure you understand and protect your rights as a potential beneficiary of your father's estate.
    Answer Applies to: Indiana
    Replied: 8/20/2012
    Law Offices of Frances Headley | Frances Headley
    No. You should consult a probate attorney about filing for probate and requesting an order to stop the sale of the property.
    Answer Applies to: California
    Replied: 8/20/2012
    Whiteford, Taylor, & Preston | Edwin Fee
    If your father was the sole owner of the house when he died, and if he has the will that you described, then his wife cannot sell the house without probating the will. After the will is probated, you could object in the Orphans' Court to the proposed sale of the house.
    Answer Applies to: Maryland
    Replied: 8/20/2012
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    You should petition the probate court to administer the estate of your father and be appointed the administrator/executor so as to have control. I advise you obtain the service of a probate attorney; expect opposition from your deceased father's wife. She cannot sell the property without a court order from the probate court, and a title company will not issue title insurance until a court order approving the sale is in place; a reasonable buyer would not want to buy the property without title being insured.
    Answer Applies to: California
    Replied: 8/20/2012
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    If the title is held in all your names, no, she cannot sell it without you joining in the sale. If the property is titled in her name, then she can sell it.
    Answer Applies to: Minnesota
    Replied: 8/20/2012
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    It depends upon how the home is titled. If it is joint tenancy between your step mom and dad, then she became the sole owner upon his death.

    If the property was just in your father's name, she would need to go through probate. I urge you to seek counsel from an attorney and schedule an appointment to discuss your specific issues.

    If you are in Nevada, please visit our web site and consider setting an appointment with an attorney in our law firm. Best of luck in your endeavors.
    Answer Applies to: Nevada
    Replied: 8/20/2012
    James Oberholtzer, Attorney at Law
    James Oberholtzer, Attorney at Law | James Oberholtzer
    The answer depends on the legal title to the house. If she is the surviving tenant by the entireties, she can sell the house without going through probate. You can find out how the house was titled by checking the recorded title at the county recorder of deeds or asking a title company to do it for you. Best wishes.
    Answer Applies to: Oregon
    Replied: 8/20/2012
    James T. Dunn PC | James T. Dunn
    If DAD is still on title to the house, it can't be sold without a probate.
    Answer Applies to: Utah
    Replied: 8/20/2012
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