My sister's husband past away seven yrs ago and the house was left to her grandchildren. The Will has never been probated and she still live...

Question

My sister's husband past away seven yrs ago and the house was left to her grandchildren. The Will has never been probated and she still lives in the house, still paying the mortgage, taxes and insurance. She had to file chapter thirteen due to debts owed my my husband. I am the trustee of the estate, can I probate the will and but the house in the girls names? They will then rent the house back to her until she is deceased. They want to make sure she stays in the house as long as she wants.

Answer

There is no legal excuse, and many potential problems, with withholding the will. In fact it is a crime for someone in possession of a will not to tuen the will in for probate. When you probate the will, you have a fiduciary responsibility to the heirs to follow the will, which likely will include collecting 7 years of back fair market rental from your sister. Had you done the right thing 7 years ago and seen a lawyer, she could likely have gotten the house as years support bypassing the will; that right expired 5 years ago.

Answer

This is all too confusing for me. Regardless of whose name is on the deed, if the husband died, title vested in the beneficiaries, which are the grandchildren. They could come back after you for causing loss to the estate (and them) because you failed to act properly here.

I would not probate this will now because its too late. The home can be deeded to the grandchildren. A lease needs drawn up then if the mother is to rent the home. The grandchildren should see a real estate attorney about this if that is what they choose to do.

Estates do not have trustees so I do not see how this can be. Trusts have trustees and estates have executors. And you are the "trustee" of nothing until you have been officially appointed as such by the probate court unless the will would say otherwise and authorize you to act.

I agree with Attorney Ashman in that there was no excuse for your actions. If you did not know what to do then you should have consulted a probate lawyer 7 years ago at the time of the husband's death.

While I do not see a need for probate at this late date, I have not seen the will or any other documents and I don't know what the sister's bankruptcy has to do with this or why she had to file a chapter 13 as opposed to a chapter 7. I suggest that you take everything to a probate attorney who practices in the county/state where the sister's husband lived prior to his death and see if anything can or should be done as far as probate. If not, then the grandchildren need to take the deed and will to a real estate attorney, have the property deeded into their names if they are over 18 and have the attorney draw up a lease between them and your sister for the home.