One sibling wants a nature preserve; another wants to unload it
The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: When my mother dies, three siblings will inherit her home and land. My sister is the executor, and she and her husband want to turn the land into a nature preserve, with me as a one-third owner. I prefer to sell the land. As executor, can she do this?
A: No, she can’t. After your mother dies, the three children will each inherit a one-third undivided interest in the property. In other words, you will be equal co-owners of the property.
If your mother’s estate is large enough, you can offer to receive cash or other property from your mother’s estate in lieu of a one-third interest in the land and home. That way, your siblings could create a nature preserve, if they want.
If that plan fails, you should notify your sister in writing that you want the property to be divided into thirds (which may not be possible, depending on the acreage, deed restrictions and value of the home) or you want it to be sold.
If she refuses, hire a lawyer.
Texas law allows co-owners of real estate to file suit to force the division or partition of land. Of course, any good relations between you and your sister will likely be destroyed once you are involved in litigation, so do your best to resolve the disagreement amicably.
Q: How can we move our home from our A/B Revocable Trust and put it in a Transfer on Death Deed? Is it necessary to use an attorney to effectuate this change?
A: The whole purpose behind a Transfer on Death Deed is to avoid probate, and that is exactly what your Revocable Trust is already doing. You will not be affording yourselves any new great advantage by signing a Transfer on Death Deed.
Importantly as well, you have a complicated Revocable Trust. The “A/B” you mentioned means that your trust creates a number of new trusts when one of you passes away. These new trusts are designed to save estate taxes and protect your properties from creditors, although there are other possible purposes. Depending on the size of your estate and your particular circumstances, it may be best to keep the present plan in place.
However, the tax laws have changed greatly over the past few years, and it may be better to consider a simplification of your estate plan. But without more information, it is impossible to say what is best for you.
Before you do anything, you need to assess whether removing your home from your Revocable Trust is the right thing to do. You should meet with an estate planning attorney to determine what the best plan is for you given your circumstances, the tax laws and the other types of properties you own.