This column first appeared in the San Antonio Express News on March 30, 2018.
Your father died with a Will. The Will should, if properly written, nominate an Executor to handle the estate. The Will should, if properly written, allow the Executor discretion to sell any real estate so long as the net proceeds are used to fulfill the terms of the Will. The Executor is not restricted by MERP, since MERP has dropped its claim against the estate. MERP does not file any type of lien and is not authorized by law to file any type of lien on the house. Your brother’s disability provided grounds to eliminate the MERP claim but did not give your brother an ongoing special right to continue to occupy the house.
Consequently, the nominated Executor should hire an attorney to probate the Will. The Executor will have the right to sell the house and have the right to evict the disabled brother. Obviously, the Executor will want to handle this as gently as possible. Once your disabled brother understands that he does not have special rights, he and the Executor can look for alternatives. Perhaps he can rent the house from the estate for a period of time long enough to make other housing arrangements. Perhaps he has the financial ability to buy the house from the estate and receive credit for the 1/10th share which he is inheriting.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.