My Dad is about to move into assisted living. He has a trust in place, my sisters and I are his successor trustees. We petitioned for guardianship and conservatorship and was awarded temporary conservatorship with a 3rd party guardian. His wife has cognitive issues and does not want any of us to help him at home, so he is staying with me until he goes into AL. In addition to cognitive issues, which are not diagnosed professionally, she has manipulated our Dad, stolen money, mismanaged his medications, and used undue influence to cause my Dad a lot of financial hardship.

He has maintained separate finances and there has never been comingling of funds or assets with his wife. So there is a clear delineation and a court order that provided for my sister to inventory all his personal items, furniture and family heirlooms, etc. and account for them, and she has done this. He owns 78% of their home through his trust and she owns the other 22% with her trust, so again, they maintain separate ownership stake.

Now that he is going into AL, we feel the urgency to gather all his personal items, some of which are now missing/stolen, and remove them completely so there are no more ties to this person going forward. Further, my Dad can furnish his new room with his 'stuff'.

We are scheduled for this Saturday to get some of his items and at that time we will bring it up that we intend to come get the rest within a few days afterwards. We live in New Mexico, and I am wondering if I will need the sheriff to facilitate this, if the current order will suffice or how we intend on extracting his items form their home.

Secondly, we will need to sell the home so he can afford his care. Am I able to force her to sell? Their trust speaks of death and remaining in the home until each other pass, but not assisted living.

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I’d call sheriff Dept to ask if - as there is a court order - they can have a deputy meet you at property OR if you can hire an off duty deputy to do this. Many places both regular police and sheriffs Dept have a little cottage industry of private security details available for hire for off duty officers; where I am in New Orleans, there like 3 that work film industry. I bet there’s something like that as NM is a film production hub.

Also I’d suggest that you have someone whose only job is to record all the contents of the property.... it can be done with an iPhone but if y’all have $, I’d just hire a videographer. So they capture exteriors, interiors, open all cabinets and closets and you each get a disc to review and possibly use for determining what’s MIA, items value, items ownership. It sounds like there will be some sort of litigation looming, so having an outsider film the assets will be very worthwhile. And you hire movers with their own truck. Moving pros can shrink wrap drawers & bubble stuff shelves to the point you do not need to clear out in advance. I’d also have a temp controlled storage unit rented & it all goes directly into the unit (Like Red Dot storage) & not your home but instead a neutral location. All this is abt removing your actions from being brought up as your “self dealing” should she litigate.

On the getting her out so house can be sold, it sounds like she has a usufruct. It may not be a called a usufruct for NM, I’m in New Orleans and we’re French Law based for Louisiana & “usufruct” are often done. Usual drama is dad leaves properties to his kids but does usufruct to 2nd / 3rd wife of 2nd home. Kids become owner as per will but kids cannot force her to leave. They can be all kum-buy-ya & coexist.
OTHERWISE Someone has to buy someone else out.
In my humble not an atty opinion, wife is in stronger position. You cannot force her to leave, she has a right to reside there. As long as she has $ to keep utilities on, she’s good! & if wife is younger she could live there decades. Your going to have to buy her out and that means you will need appraisal done by a licensed & registered residential appraiser to get Fair Market Value. If place is old w lots of delayed maintenance, you may want to get it inspected prior (again licensed & registered) & inspectors report goes to appraiser. Please PLEASE keep in mind she will need to be cooperative to let inspectors & appraiser onto property. & tho she has minority interest at 22% she can find her own appraiser to contest your FMV, should she want to.

Also she can stall going to Act of Sale & kill deal as most of the time lending on mortgages are time dependent (30 days to close or no lending). If she wants to be all bad witch on this, & if that might be her nature, she’s a pro w decades of experience. If Dad had a lot of kids (& perhaps more importantly their spouses), well not everyone is going to want to be dealing & shelling out $ on that house for years & years. Whomever in your sibling group that can be the most diplomatic & calm needs to take the lead on dealing with her & come to equitable terms to buy her out & be prepared to buy her out in cash upfront at 30% is my suggestion. On missing “heirlooms”, forgetabtit, it is/was their household, if she wanted to Goodwill or garage sale stuff, she could. It’s not a museum, it was their home, stuff gets jettisoned. Good luck.
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An attorney can tell you if you can force the sale of the house. If they're tenants in common, not joint tenants, I'd think you could force the sale, but the wording of the trusts could be an issue.

Buy an hour of a trust and estate attorney's time to get the straight answer.
Helpful Answer (3)

You will have to read title carefully. Is his portion a part of his trust? If so I doubt it can be changed now, and must await his death. Is there anything written into will or trust that says she can stay in home until her death. I assume you have done a careful reading of the trust and the will to know what you can and can't do. You may not be able to force a sale during her lifetime. Do hire a lawyer. The trust pays for this. And you may need several hours of advice.
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igloo572 May 2021
Yeah & for even more fun, there appears from OP to be two Trusts & each their own % ownership of the one home.
As an aside on Trusts & parents objects, Mad Men, Season 2, Episode 10, “The Inheritance” is especially on target.
It has both the Pete Campbell character & his atty brother & their WASPY dementia mom in the there’s no $ in Dyckman Trust “Real estate? I would have heard about that” scene AND the Don & Betty Draper back at her family home as dad had a stoke & he’s way way inappropriate and Betty goes all heated on SIL Judy over taking a jardiniere from the house & “I’m an orphan!” scenes. Spot on.
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This may sound paranoid, but I would suggest you and anyone else helping to remove items wear a GoPro or another type of recording device and DO NOT turn the devices off until you leave! Also, if you can, video record EVERYTHING you load up to protect yourself from her saying you stole something! If you can get another kind of camera that's harder to see, you may be better off because you may avoid a confrontation with her! If she's rude and obnoxious, it'll be on record! If things are missing, ask her where the i5ems are! That way, if she changes her story later, you've got the recordings to back you up! Also, maybe it'd help to list all missing items and have her sîgn it! Just a thought! I don't envy your position! God bless you!
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