I've read your profile and see some extra details. The POA had him declared incompetent and put the house of for sale. Dad learned about this and is furious. He is living with a son and wants to know if the dad's competence can be evaluated again for his competence. I would think so and if he is found competent needs to remove the current POA and make a new one.
If dad dies before the POA can sell the farm, then it will go according to the will and thus go through probate. The POA doing this so quickly raises some red flags for me. The POA ends at dad's death and then the executor takes over. Does anyone know where the will is and who is the executor?
My apologies if it seems I wrote my post below with the understanding that the OP is the one who wants to sell. I did, rewrote it, but b/c of the narrow time limitation for editing of posts, I may have missed something.
I do want to add that if the POA proxy executes a sale contract outside of the express intent stated in the Will, and he/she is or will immediately be advised of the Will's provisions re the farm, I think your brothers (and possibly you) would have grounds for suit, to rescind the obligations, prevent the sale, and possibly charge the proxy with malfeasance.
If you could provide more background on who the Proxy is, and what's behind this rush, it would help explain what's going on.
There are some other issues that might come into play:
1. Does the proxy have a Durable Power of Attorney granting the authority to act under the circumstances specified, or is it a springing POA? In other words, do he/she actually have authority to do this now as duties are spelled out in the document?
2. Is the Deed titled solely in your father's name? Your profile indicates he wanted it surveyed to divide between the two sons. Was any Deed prepared? I assume it hasn't been executed, even if one had been prepared.
As to the existing Deed, who else if anyone is named on the Deed and in what capacity? I.e., "joint tenants with rights of survivorship".
3. Very, very importantly: what does the Will provide? Does it include provisions that a relative, you, the brothers, or someone else, or a non relative, will inherit his farm? Assuming that this is a producing farm, what other Will provisions might there be to address a sale?
4. If the Will includes those provisions, and there's a pending contract for sale, there could be some real challenges if/when he passes. Same issue if an heir, or the 2 brothers, are specifically identified to inherit the farm.
5. Is there some reason why the POA proxy wants to sell now? It seems as though someone's really in a hurry, which makes me wonder if there are other issues not mentioned. I do understand not wanting to go through the rigamarole of Probate though.
6. There's a somewhat complicated issue known as "step-up", which addresses the value of the farm on date of death. Step-up provisions also first address the value on the death of the spouse, then the owner.
Read the first two paragraphs of this article on step-up values:
https://taxfoundation.org/step-up-in-basis/
Note especially the second paragraph addressing the higher value for capital gains calculation on property sold before the owner's death. If sold now, and the brothers are essentially squeezed out of the picture, and your father is still living, your father will lose the full step-up value and have to accept the diminished net result b/c of potential capital gains.
7. Note however that the article does NOT address step-up values for commercial or income generating property. An attorney or accountant definitely needs to be consulted for this, or some serious tax problems could arise. This is a whole different issue. (And there's also the value of any "going name" concern if it's a commercial farm - see 8 below.)
8. Is the farm a commercial one which is producing, and for which there are assets and liabilities, as well as equipment? Contracts for sale of produce?
If so, a commercial law or transaction attorney should review ALL the contracts to see if there are any prior requirements of notice to sell which need to be provided to suppliers or other related entities. If contracts for produce sale are in place, an attorney absolutely must review those to determine if prior notice must be given.
Contracts for produce would likely include delivery anticipations, and selling the farm w/o addressing those could produce penalties, if not worse. Companies expecting delivery aren't going to be happy if those deliveries don't occur. So carry-over to the new owner needs to be addressed.
9. If a contract for sale has been executed, but the transaction hasn't closed, once your father passes, the Personal Rep, Executor/trix would take over and handle the remaining aspects, assuming that there's no conflict with the Will, everything else (see above) is in place, and the PR, Executor/trix IS in agreement.
IMPORTANT: his last debts must all be satisfied before any funds can be disbursed, so proceeds of the sale would be applied in that manner. This would apply to expenses of hospice, of previous medical treatment, etc. And if the farm is commercial, is a named entity, his role as sole owner, part owner, etc. would be factored in in terms of obligations.
I placed my Moms house up for sale when she came to live with me in 2014. Proceeds were going to be used for her care in an AL. As of her death in 2017 the house was still up for sale. I had DPOA and was also Executor. The house was included in probate. My brother inherited it but didn't want it. I had to hire a lawyer to draw up paperwork putting it back into the estate. The house finally sold, leans were paid and the balance left over went to the 3 beneficiaries.
So, the answer is yes. Its still part of the estate.
The PR of the estate will now handle the sale, and yes, the home, if only in the fathers name, or someone's else name held jointly, who is also deceased, it will go through probate. I would consult a local attorney.
Is there a sales contract for the farm signed by the POA, or is the farm just on the market?
The POA ends at death so the executor of the estate would have to complete the sale if there is a signed contract. If there is not a sales contract then the farm would go through probate.
I hope that helps but I'm not a lawyer though so best to consult with one.
But it also turns on whether the proxy knows the father intended to leave the farm to the sons. Still....
Something still smells "fishy" about the rush to sell.
If dad dies before the POA can sell the farm, then it will go according to the will and thus go through probate. The POA doing this so quickly raises some red flags for me. The POA ends at dad's death and then the executor takes over. Does anyone know where the will is and who is the executor?
I do want to add that if the POA proxy executes a sale contract outside of the express intent stated in the Will, and he/she is or will immediately be advised of the Will's provisions re the farm, I think your brothers (and possibly you) would have grounds for suit, to rescind the obligations, prevent the sale, and possibly charge the proxy with malfeasance.
If you could provide more background on who the Proxy is, and what's behind this rush, it would help explain what's going on.
1. Does the proxy have a Durable Power of Attorney granting the authority to act under the circumstances specified, or is it a springing POA? In other words, do he/she actually have authority to do this now as duties are spelled out in the document?
2. Is the Deed titled solely in your father's name? Your profile indicates he wanted it surveyed to divide between the two sons. Was any Deed prepared? I assume it hasn't been executed, even if one had been prepared.
As to the existing Deed, who else if anyone is named on the Deed and in what capacity? I.e., "joint tenants with rights of survivorship".
3. Very, very importantly: what does the Will provide? Does it include provisions that a relative, you, the brothers, or someone else, or a non relative, will inherit his farm? Assuming that this is a producing farm, what other Will provisions might there be to address a sale?
4. If the Will includes those provisions, and there's a pending contract for sale, there could be some real challenges if/when he passes. Same issue if an heir, or the 2 brothers, are specifically identified to inherit the farm.
5. Is there some reason why the POA proxy wants to sell now? It seems as though someone's really in a hurry, which makes me wonder if there are other issues not mentioned. I do understand not wanting to go through the rigamarole of Probate though.
6. There's a somewhat complicated issue known as "step-up", which addresses the value of the farm on date of death. Step-up provisions also first address the value on the death of the spouse, then the owner.
Read the first two paragraphs of this article on step-up values:
https://taxfoundation.org/step-up-in-basis/
Note especially the second paragraph addressing the higher value for capital gains calculation on property sold before the owner's death. If sold now, and the brothers are essentially squeezed out of the picture, and your father is still living, your father will lose the full step-up value and have to accept the diminished net result b/c of potential capital gains.
7. Note however that the article does NOT address step-up values for commercial or income generating property. An attorney or accountant definitely needs to be consulted for this, or some serious tax problems could arise. This is a whole different issue. (And there's also the value of any "going name" concern if it's a commercial farm - see 8 below.)
8. Is the farm a commercial one which is producing, and for which there are assets and liabilities, as well as equipment? Contracts for sale of produce?
If so, a commercial law or transaction attorney should review ALL the contracts to see if there are any prior requirements of notice to sell which need to be provided to suppliers or other related entities. If contracts for produce sale are in place, an attorney absolutely must review those to determine if prior notice must be given.
Contracts for produce would likely include delivery anticipations, and selling the farm w/o addressing those could produce penalties, if not worse. Companies expecting delivery aren't going to be happy if those deliveries don't occur. So carry-over to the new owner needs to be addressed.
9. If a contract for sale has been executed, but the transaction hasn't closed, once your father passes, the Personal Rep, Executor/trix would take over and handle the remaining aspects, assuming that there's no conflict with the Will, everything else (see above) is in place, and the PR, Executor/trix IS in agreement.
IMPORTANT: his last debts must all be satisfied before any funds can be disbursed, so proceeds of the sale would be applied in that manner. This would apply to expenses of hospice, of previous medical treatment, etc. And if the farm is commercial, is a named entity, his role as sole owner, part owner, etc. would be factored in in terms of obligations.
So, the answer is yes. Its still part of the estate.
The POA ends at death so the executor of the estate would have to complete the sale if there is a signed contract. If there is not a sales contract then the farm would go through probate.
I hope that helps but I'm not a lawyer though so best to consult with one.