[Rebeccaallen]

My grandfather passed away Dec 2011. He had no will, His estate is in probate, I understand it is to be divided between his 3 children, one of which is my mother. Her two siblings both want to sell but she does not. Probate judge has told her recently that even though she doesn't agree that she has to put the property on the market. My mother is the fidicuary of the estate. My question is that on the deed to my grandfathers land. Which was passed down to him by his father. It states "said property is given to ... and his heirs "never to be sold" This land has been in my family for almost 300 yrs. If the deed states that is there anyway of contesting the sale of the property?

[ScottGem]

I doubt if such a clause would be enforceable. I would consult an attorney in your area to be sure.

[Rebeccaallen]

Ok, thank you.

[Fr_Chuck]

The probate judge will have the final call, you can object and other attempts, if you really want to keep the land, you need to consider trying to buy if from the others

[Rebeccaallen]

I'm not in really in the position to do so at the time, so trying to figure out if there is any other possible way to save it. I figured that the deed stating that would hold some kind of clause, but I guess not. Thank you for your answer though it is appreciated. I just want to save my grandpa's land.

[AK lawyer]

That "never to be sold" deed restriction has been in effect for almost 300 years? Very interesting if true.

Ask yourself this; if your father had tried to sell it when he was alive, who could have objected? Probably no one would have had standing to object. There probably was no provision that the property would revert to someone in case of a violation of the restriction.

I think this restriction would be an invalid "restraint on alienation".

[excon]

Probate judge has told her recently that even though she doesn't agree that she has to put the property on the market.

Hello R:

I'm having trouble believing that the probate judge can ORDER your mother to sell. Was she represented?? If not, maybe she should inquire.

excon

[Rebeccaallen]

Yes she was represented, because both of her siblings want to sell the probate judge said that my mother has to put the property on the market.. Is there some kind of way around this that anyone knows of?

[AK lawyer]

...
I'm having trouble believing that the probate judge can ORDER your mother to sell. Was she represented??? If not, maybe she should inquire.
...

So put yourself in the shoes of one of the siblings. He or she has the right to inherit 1/3 of the property. Let's say he lives in a different state perhaps, but in any event has no desire to live in the property, sharing it with his two siblings. In that event, how is he to get any use or value out of his inheritance unless the property is sold?

I'm not in really in the position to [buy the property] at the time, so trying to figure out if there is any other possible way to save it. ...

Is your mother, in combination with you and your siblings (if any) in such a position?

[excon]

So put yourself in the shoes of one of the siblings.

Hello lawyer:

As you and I both know, the law isn't always fair. And I don't disagree with you that ONE or maybe TWO of the siblings aren't going to be happy... Nonetheless, absent a finding of fault, I don't believe a probate judge has the power to order a sale...

I'm not attached to my position. I'd be happy to be proven wrong.

excon

[Fr_Chuck]

Sadly you are right Excon, the law has nothing to do with being fair, it is not who is right,
The law is about who has the correct legal position. And as noted, merely being added to a will about not sell , is normally a condition that is not binding, it is considered a request, for example, if taxes were not paid, it would be sold for taxes, now it is in probate and has to be divided according to those laws. There are options, one you buy them out, or another family member not listed but still a more distant family be found to buy them out.

[Rebeccaallen]

Ak Lawyer,

Both of the said siblings do live in the state, what I am confused about is how can my mother be forced to sell her 1/3 of the land when she has just as much right as her siblings? Why should she have to "buy them out" If they choose to sell their shares why can't my mother keep hers without having to buy the others out? I am just trying to understand and maybe find a way around this. As my mother is not in the position to buy them out.

[AK lawyer]

Ak Lawyer,

Both of the said siblings do live in the state, what I am confused about is how can my mother be forced to sell her 1/3 of the land when she has just as much right as her siblings? Why should she have to "buy them out" If they choose to sell their shares why can't my mother keep hers without having to buy the others out?? ...

It's a matter of getting some use out of it.

As I said, if the siblings were forced to each take a 1/3 share, without having any use for it, it would be decidedly unfair to them and at the same time no particular use for the mother unless she chooses to live on it.

Call your mother "A" and her siblings "B" and "C".

In economic terms it breaks down as follows:

Call "R" the monthly rental value of the property.
They are forced to keep ownership of it, value to A is R per month (what she would have to pay as rent for a similar property); B & C each get $0 per month. Or, if can get A to pay R to them, A gets (R - R =) $0 (+ sentimental value of living on her grandfather's property). B & C each get R/2. The thing is, B & C don't want the hassle of being, in effect, landlords. They want the cash.

If it is sold, A, B, and C each get 1/3 of the fair market value of the property. Much fairer to all concerned.

Or, put another way, by choosing not to make a will, your grandfather elected to accept the "default will" which is your state's intestacy statute. In so doing, he in effect chose to leave each of the three siblings 1/3 of his estate. He could have said that your mother gets this property. He didn't. Instead, he gave each 1/3. Essentially that was his decision to make and he made it. The law doesn't give you the right to second-guess his decision.