How to sale heir property? (tenants, accept, agreement, percentage)

[freehugz]

My mother has power of attorney over my step father. He has dementia. He is one of six siblings that owns 78 acres of land. Only three of which are living. My mom wants to sale his part. Is that possible?

[bbronston]

It's a legal question. You will need to talk to a real estate attorney.

[jackmichigan]

Originally Posted by freehugz

My mother has power of attorney over my step father. He has dementia. He is one of six siblings that owns 78 acres of land. Only three of which are living. My mom wants to sale his part. Is that possible?

Possibly. It all depends on who owns an interest in the property and how that interest is held. In some cases, if agreement can't be reached among the owners, one party can force a sale of the property. If the sale is forced, however, you will usually receive much less than the property is worth. Perhaps more significantly, it's a great way to divide a family and engender lifelong animosities.

You might be better off to check if the other owners might be willing to buy his interest out. Even if you accept considerably less than market value for the portion he owns, you may do just as well financially. Plus, maybe they'd like to gain control of the title. (Partition may also be a possibility.)

If it's farmland (especially), there may be programs (state, local or federal) which will buy the development rights to the property. This could give you financial flexibility to work something out within the family. Contact a local land conservancy and they may be able to help you investigate the possibilities. Unfortunately, the process to secure federal funding under the Farm Bill is lengthy.

Whatever you wish to pursue, you should consult with an experienced real estate attorney--preferably someone familiar with conservation law and federal tax benefits.

[willow wind]

You need to figure out what kind of power of attorney she has. If the power of attorney was created before your step dad developed dementia then it might not be in effect after he became incapacitated.

Read the power of attorney papers and see if it is a durable power of attorney, which means it would stay in effect even as his dementia progresses. If not, your mom may need to to probate court to have him declared incompetent and then be appointed conservator or guardian.

Also read the deed to the property. Is the land held as joint tenants or tenants in common ? If it's held as joint tenants , then each person on the deed has an equal interest in the land. One parcel in your case, divided by six. Even if some have died, their heirs take their place.

If it's tenants in common, then each owner gets a specified percentage which may or not be equal- depends on how the deed is worded.

Also, read to see how the rights of survivorship are worded. In a joint tenancy with a right of survivorship, if one person dies,the parcel is divided among the remainders without having to go through probate. If it's tenants in common and some have died , the land has to go through probate before if can be divided and sold.

Speak to a probate/trust attorney to get this figured out first, then you can decide how to proceed with selling the parcel.

One more question- is there an existing survey on the property? That's a huge parcel to have to survey from scratch. Who who would be paying for it if it has to be done ? .

[Jkgourmet]

Originally Posted by bbronston

It's a legal question. You will need to talk to a real estate attorney.

This. That's the ONLY correct answer.

This mess is further complicated by the fact that this land was owned by six siblings, three if whom are dead. You (meaning your mom's attorney) will need to determine who inherited the 1\6th share that was owned by the dead siblings.

This is not going to be a quick transaction. If one of the remaining siblings (or someone who inherited a dead siblings share) wants to buy, that might be easier.

Good luck.