Sandra Reed’s Life Care Planning: So you inherited Mom and Dad’s house — now what?

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers

your life planning questions.

The Jessups had been married for 60 years. Mr. Jessup died at age 93. His will left all his property to his wife.  Mrs. Jessup died two years later with a will that specified all her property was to be equally divided by their sons, Peter and Paul. Peter lived in the same neighborhood as their mother while Paul lived 300 miles away.  Peter, due to his proximity, handled more of the duties of coordinating with caregivers for their mother’s care.

Dissension in the Ranks

During the last few months of her life, Mrs. Jessup developed an irrational irritation with Paul, contending he had neglected her by not visiting more often. Before she died, she expressed her manufactured resentment by extracting a promise from Peter that he would personally go through her “things” and handle the disposal of any of her property. Paul wasn’t present when the promise was made but, although he was hurt at his mother’s seeming favoritism toward Peter, he acquiesced in Peter’s taking over the sale of the contents of Mom’s residence.

Paul shrugged off his annoyance when Peter went through the house alone and took the items he wanted first, then arranged for Paul to take what he wanted. After all, he was being spared the chores involved in arranging an estate sale.  esides, there wasn’t much in the way of his parents’ effects that he wanted. He loaded up some tools from his father’s workshop and a few sentimental items and and called it a day.

After the estate sale, Paul assumed he’d get a report on the expenses and net proceeds from Peter. Weeks after none had come. A family member, assuming Paul was in the know, asked if he was pleased with the realtor’s handling of the sale of his parents’ house. Apparently, Peter had made arrangements alone to sell the house.

Paul was furious now. He had no intention of blocking the sale, but he wanted to participate equally in choosing a realtor and setting the price. How dare Peter take over without consulting him!

Paul’s indignation was heightening because the home represented the primary asset bequeathed to him and Peter. Paul worried that Peter would set any price he chose and expect him to take Peter’s word that he got a fair price and had divided the proceeds equally.

Can Peter Act Alone With Impunity?

Can Peter act alone and get away with it? No. The ownership of property in a decedent’s estate passes immediately to devisees or legatees under the will or heirs at law in intestacy. The devisees, legatees of heirs at law own the property as tenants in common.

That means that Peter and Paul each own an undivided one-half interest in the home.  Neither of them can sell the whole property without the consent of the other. Although each has the right to sell his undivided interest without obtaining the other’s agreement, as a practical matter, no buyer is going to buy a home under those circumstances.

The promise Peter made to his mother carries no legal import. Any action taken requires the consent of both heirs.  (That was actually true of the personal property in the house as well, but Paul waived his right to protest by going along. Had Paul wanted to press it, he could have sought an accounting, which would have been practical if the property was worth substantially more than the cost of the suit to obtain it.)

It would be highly unusual for a realtor to enter into a real estate listing contract with one party of jointly owned property. Even if Peter found a realtor willing to do so, he would encounter additional hurdles in entering into a sale contract with a potential buyer. Most buyers are not interested in purchasing under those circumstances because no title company will issue title insurance unless of all persons owning an interest in the property have signed the contract of sale.

What Should Paul Do?

It is in Paul’s best interest that the matter be resolved amicably if at all possible. After all, the value of the relationship with a brother is more important than the value of the house in most instances. Paul should approach Peter tactfully and request to be brought up to date on the status of the sale of both the personal property and the house. Peter’s responses will give Paul more information about whether there is a sinister motive to Peter’s actions.

Most likely there isn’t. But if Peter is under the illusion that the deathbed promise to his mother is binding, Paul will have the opportunity to approach this with a compassionate but firm response to the contrary. If necessary, he can suggest they seek the counsel of a third party to help them resolve any conflict.

If Peter seems to be bent on continuing sole control after this discussion, Paul should contact the real estate agent with whom Peter has been dealing. He should inform the agent of his co-ownership and his intent to participate in all negotiations, including setting the price for sale.

If the real estate agent does not cooperate, Paul should seek the counsel of a lawyer knowledgeable in the area to help him negotiate with Peter.  It is in the best interest of both heirs to reach agreement on all aspects of the sale. Waiting until sale is halted by the failure of the title company to issue a policy will, at the least, cause delay. Delay is costly because Peter and Paul will have to pay taxes, insurance and maintenance on the property until it sells.

Sandra W. Reed is an attorney practicing in Glen Rose. She is Of Counsel with the Elder Law firm of Katten & Benson in Fort Worth.  If you have any questions, you may contact her by phone at 254-797-

0211 or by email at

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