My brother is the executor of my father's will. My father has dementia and was just put into assist living home. He also has guardianship of our father. I heard through my sister that he wants to sell my father's house to one of his children for less than what it's worth. What he will sell it for will be only one year in the assisted living home. Can he have the power to sell house now or does he have to wait until the will?

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He can't do anything as executor b/c that authority only begins on your father's death.

If he sells under the POA authority, he might be engaging in "self dealing."

Pay close attention to the advice regarding (a) selling for less than market value and (b) Medicaid liens if your father ever needs Medicaid assistance.

Brother's idea is not a good idea.
Helpful Answer (3)

Are you sure that your father has not already applied for Medicaid to have your father stay in assisted living? and that your brother, thinking the house is exempt for Medicaid purposes, does not understand that selling the house makes the funds from the sale NON-exempt? You really don't have enough information at this time to do much - hopefully the brother with guardianship and subsequent Power of Attorney understands that selling the house has to be specifically allowed by his power of attorney or the title company won't accept it for sale. The sale of house cannot be done by quit-claim, stay in Dad's name for cheaper property taxes, and be exempt from Medicaid recovery. Your sister and you don't have enough information in this case to really panic yet. The will won't matter until your father passes away, and his care if being done through Medicaid will have a lien on the house. All of this in addition to the excellent comments above makes it a hassle, but not your responsibility to fix.
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Regarding the “for less than what it’s (dads house) is worth”, so just what are you basing property value on?

I ask cause FMV can vary..... there’s the tax assessor value based on comps of recent sales of similarly sized property within an area;
-appraised value done by registered’ licensed appraiser, which is based on detailed onsite study& usually considered a legal document;
-Realtors listing price, which often has price under more than ideal circumstances as Realtor is expecting bidding & reductions
& then what you’ve heard others houses have sold for

What are you basing value on? Often elders are living in homes with decades of delayed maintenance; homes with pre1990’s electrical, plumbing; vintage kitchen & baths. They are not even close to what the recently sold comps are. If house in area with lots of Reno’s & flips, value will be way way off. Property could be worth lots, lots less plus remember that selling to family means no 6% Realtor commission. My point is the price bro is selling for could be fair & accurate for Condition.

But If he should need to apply fir Medicaid later, he will need to show why below FMV. Appraisers report does this.

Brother as guardian, has gone through a whole legal process to be this. Was there a reason why you did not yourself ask to be named guardian?
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You heard through your sister ... aren't you speaking to this brother yourself? How reliable is your sister's report to you?

As your father's guardian, Brother has a legal responsibility to act in father's best interest. Selling the house at less than market value does not sound like acting in his best interests. Of course, there may be some mitigating circumstances. Is "what it's worth" really what it would sell for, or is it in disrepair and would cost a lot to bring up to code, remodel, whatever is needed? Are back taxes owed? Is selling it quickly for any amount better than letting it go to auction? How did you or sister determine what it is worth?

As a legal guardian your Brother has to make periodic financial reports to the courts. I think selling an asset at less than it is worth would raise all kinds of red flags.

He does have authority to make all financial decision for your father. The will has nothing to do with it.

If you are worried about his behavior, could you have a discussion with all siblings present, so he could explain what is going on to you? He is under no legal obligation to explain anything to you, but perhaps in the interest of family harmony he'd be willing to set your minds at ease.
Helpful Answer (2)

If dad ever needs Medicaid bro better be able to show that the home was sold for market value. Or it will be considered a gift and subject to Medicaid penalty of no coverage, dollar for dollar.
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