# Finalising Mothers estate - obliged to sell house?



## Michael3

Hi - my 2 brothers and I are in the process of finalising my late mother's estate. In her will she bequeathed various possessions to each of us and stated that her house was to be sold and the proceeds split equally between the 3 of us. The house is mortgage free. Her Solicitor has told us that we have to sell the house straight away. We dont dispute that the house will have to be sold (nobody living there) but now is not a good time to sell and we had planned on renting it out and selling when the housing market picks up. Is the solicitor correct - do we have to sell it now because the will states she wanted the house sold - or can we choose when to sell?


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## olddoll

I would imagine that in order to finalise the administration of the estate the house will have to be sold and the proceeds distributed.  The solicitor and executor won't want things 'hanging in the air' for years until house prices improve.  Could the solicitor transfer the house into yours and your brothers names?  Possibly that would allow him to finalise the will and then if and when the market picks up you could sell it.


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## Michael3

Thanks - our feeling is that it would suit the solicitor if we sell now and he can get his fee paid. I'll see if transferring ownership to one of us will indeed complete the will and we can then make our own decision whether to rent out or not. Thanks for the advice.


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## mathepac

Michael3 said:


> ...  I'll see if transferring ownership to one of us will indeed complete the will ...


Be very careful. This is contrary to the very specific wishes expressed in your late mother's will and the executor will not have any discretion.

If one of you elects to buy the house out of the estate (presumably for two thirds of its current market valuation) and the executor agrees, then that should be OK.

There is no provision in the will (or in law AFAIK, but IANAL) to temporarily transfer ownership to a beneficiary, rent it and wait until the market picks up before selling and then dividing the proceeds, if that's what you propose, nor can  the executor do this on behalf of the beneficiaries, even if you could do this there may be serious tax implications for all of you.

You should also be aware that the executor has to work to a time-schedule in relation to finalising the estate, and failure to so do may have implications for whoever the executor is, with Revenue possibly asking the questions.


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## Welfarite

I don't think the solicitor can transfer the house into the thre benefactors names for sale at later date; this would seem to be going againsts the terms of the will which state house is to be sold and THEN proceeds distributed between three benefactors.


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## mf1

I would say the issue is more:

1. Who is the executor? If it is one of the beneficiaries, not a problem. May be a problem if it is not one of the beneficiaries. 
2. Are there funds available to pay the solicitor now - whether or not the house is sold. 
If yes, fine. If no, why should solicitor wait until house is sold. 
3. Unless house was to be sold immediately, I don't see any reason why the parties cannot have the property vested in all three names by agreement and hold it until the market improves. They would all have to indemnify the executor.

So, I suspect the answer is that the house does not have to be sold immediately - if all beneficiaries are in agreement and there are funds to pay the solicitor. 

mf


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## Marion

I reckon that you could put the house on the market but the solicitor cannot force you to sell.

Marion


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## Brendan Burgess

I remember some time ago hearing that there was a tax advantage in  expressly stating in  the will the wording "that the house be sold and the proceeds distributed" 

I can't remember what the advantage was. 

Brendan


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## Pat Bateman

Brendan Burgess said:


> I remember some time ago hearing that there was a tax advantage in expressly stating in the will the wording "that the house be sold and the proceeds distributed"
> 
> I can't remember what the advantage was.
> 
> Brendan


 
Perhaps it's a cashflow/timing issue?

Prior to the introduction of the new CAT filing regime this year, the beneficaries would normally have 4 months to submit the relevant return and pay the relevant CAT.

If the property forms part of the inheritance then the CAT related to it should be payable within 4 months. However, if the will stipulates that "the house be sold and the proceeds distributed" then surely the inheritance related to the property should only crystalise when the property is sold and the underlying CAT would be payable 4 months from then?

I could be wrong, but that would be my interpretation.


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## csirl

Marion said:


> I reckon that you could put the house on the market but the solicitor cannot force you to sell.
> 
> Marion


 
The executor is conducting the sale, not the beneficiaries. Executor is obliged to sell within a reasonable timeframe - usually 12 months - even if it means selling at a knock down price to shift the property. The executor does not have the legal authority to rent out the house. 

If the benefactors want to keep the house, there's nothing to stop them  buying it from the estate.


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## Michael3

Hi All - thanks for the replies so far. My brother is the executor of the will and there are 3 beneficiaries - myself and my 2 brothers. My older brother is the executor. We are all in agreement that we dont want to sell the house in the current market and we have the funds to pay the solicitor what he is owed immediately. I suppose my query was about the will being legally binding. It doesnt state the house had to be sold straight away but this is how our solicitor is interpreting it. Even if that were the case do we have to go by the letter of the will if all 3 of us are in agreement to wait to sell? How does it stand in law - are we obliged to do what the will states?


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## mf1

"If the benefactors want to keep the house, there's nothing to stop them buying it from the estate. "

But, in reality, they own it or at the very least they own the proceeds of sale. So, even if they bought it and raised a mortgage, the executor would just be giving them back the money. 

If they ( the beneficiaries) all agree and they all have a common purpose, then the executor should listen to them and if they don't want to sell just yet, then so be it. 

mf


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## Brendan Burgess

> It doesnt state the house had to be sold straight away but this is how  our solicitor is interpreting it.



Why do you have a solicitor if your brother is the executor? 

Your solicitor is giving you advice. You are free to reject it. The executor should get your assent in writing to ignore it. 

Brendan


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## Padraigb

There are legal ways to vary a will, as mf1 has pointed out. But although mf1 sees things from a solicitor's point of view, and I usually don't, this question lies on top of a minefield. Cutting through the inheritance question, what it comes down to at a basic level is that OP and his brothers want to be property speculators: they want to time a property transaction in relation to their reading of the property market. 

Suppose (a) there were problems with a letting, and/or (b) the house was sold later for a lower price than it might realise today. The solicitor handling the estate might fear recriminations or complaints. It is safer for the solicitor to follow the directions in the will, and the Succession Act implies quite strongly that 12 months is a reasonable time scale to deal with an estate.

If the beneficiaries agree between themselves that they want to play the property game, then they should take steps to ensure the solicitor is paid _and indemnified_.


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## Brendan Burgess

> as mf1 has pointed out. But although mf1 sees things from a solicitor's  point of view,



Huh? 

mf1's contribution to Askaboutmoney over the years has always been based on the practicalities of the situation first and foremost. I have dealt with solicitors who see things from a solicitor's point of view and mf1 is certainly not one of them. 

Brendan


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## csirl

mf1 said:


> "If the benefactors want to keep the house, there's nothing to stop them buying it from the estate. "
> 
> But, in reality, they own it or at the very least they own the proceeds of sale. So, even if they bought it and raised a mortgage, the executor would just be giving them back the money.
> 
> If they ( the beneficiaries) all agree and they all have a common purpose, then the executor should listen to them and if they don't want to sell just yet, then so be it.
> 
> mf


 
Yes, I agree.

The important thing though, is that the probate process is completed within the timeframe. You cannot have a situation whereby the house still belongs to the estate and is being rented out by the beneficiaries. It needs to be done in such a way that the title gets transferred to the beneficiaries in lieu of cash - or as part of a circular payment i.e. the beneficiaries are legally buying the house with the proceeds of the sale, but no cash is actually changing hands. The property will need to be valued so as the value of the estate is established. If there isnt enough cash in the remainder of the estate to pay the solicitor, then the beneficiaries should as they are the ones requesting that the house shouldnt go on the market.


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## Padraigb

Brendan Burgess said:


> mf1's contribution to Askaboutmoney over the years has always been based on the practicalities of the situation first and foremost. I have dealt with solicitors who see things from a solicitor's point of view and mf1 is certainly not one of them.



I wasn't using the phrase "solicitor's point of view" in any pejorative sense, just in the sense that mf1 has a way of seeing things that I, as a non-professional, do not have. I am pleased to clarify that I consider mf1 to be fair and helpful, and not one of the "my gang versus the world" types.


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## mf1

I am in the room, gentlemen!

mf


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## spreadsheet

In my opinion, your mothers wishes are purely to avoid  arguments or future strife between siblings or siblings spouses related to the property.

There are many cases where beneficiaries have fallen out for years due to their interpretations of what should happen to deceased parents estates. 

If I was in your position I’d do exactly as she said and thank her for her wisdom in years to come.


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## Pat Bateman

spreadsheet said:


> In my opinion, your mothers wishes are purely to avoid arguments or future strife between siblings or siblings spouses related to the property.
> 
> There are many cases where beneficiaries have fallen out for years due to their interpretations of what should happen to deceased parents estates.
> 
> If I was in your position I’d do exactly as she said and thank her for her wisdom in years to come.


 
That's all well and good, but per the OP the beneficaries agree that now is not an opportune time to sell the property. I'm sorry for their loss and wouldn't dare to second guess their mother's view. However, I know my own mother would want us to adopt a practical approach if we were in the same situation. I don't believe I'm speculating on the future direction of property prices when I say that selling a property right now if you don't have to isn't the best idea.


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## Padraigb

Pat Bateman said:


> ... I don't believe I'm speculating on the future direction of property prices when I say that selling a property right now if you don't have to isn't the best idea.



Of course you are speculating: you are making a decision based on your opinion of future prices. And that is what OP and his brother want to do. They are, of course, entitled to do so, but they should make their decision while being mindful of the danger that property prices might fall further.


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## Brendan Burgess

Folks - please don't start speculating about house prices - we don't allow it on askboutmoney


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## rockofages

AFAIK there is nothing to stop the Executor putting the house in the names of the beneficiaries. It is they that police the execution, and if they're happy to transfer it...


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## mathepac

rockofages said:


> AFAIK there is nothing to stop the Executor putting the house in the names of the beneficiaries. ...


The will does as it is specific in relation to how the house is to be treated.

See previous posts about beneficiary agreements and indemnification of executor.


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## Padraigb

Brendan Burgess said:


> Folks - please don't start speculating about house prices - we don't allow it on askboutmoney



Fair enough, boss. But I think that we are a degree removed: we are speculating about speculating.


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## rockofages

mathepac said:


> The will does as it is specific in relation to how the house is to be treated.
> 
> See previous posts about beneficiary agreements and indemnification of executor.


 
If all beneficiaries agree consent in writing, who is going to complain? I would have thought that as long as they all agree in writing and the spirit of the will is being followed...


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## pudds

Hopefully an arrangement can be made to sell the house at a later date as this is the sensible thing to do and all are in agreement but isn't it the Probate office/court that will have the final say if such a deal is acceptable or not.


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## rockofages

No, the probate office just grants probate to the Executor. ie gives the Executor the legal power to administer/distribute the estate.

The Executor can delay the sale of the house for as long as they like, but once outside the 12 months from the date of death the Executor can be sued (in theory) for not doing their job. Again, if all beneficiaries agree in writing not to proceed with the sale I don't see how there could be a problem...


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## csirl

rockofages said:


> No, the probate office just grants probate to the Executor. ie gives the Executor the legal power to administer/distribute the estate.
> 
> The Executor can delay the sale of the house for as long as they like, but once outside the 12 months from the date of death the Executor can be sued (in theory) for not doing their job. Again, if all beneficiaries agree in writing not to proceed with the sale I don't see how there could be a problem...


 
You cannot keep an estate in existance indefinately - it is supposed to be  temporary. And if a property is rented out while part on an estate, then the estate gets all the rental income, not the beneficiaries. This rental income cannot be drawn down by the beneficiaries, it must be banked until it is distributed along with the rest of the estate.


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