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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
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Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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I am the successor trustee. The occupant, nephew of the deceased

Resolved Question:

I am the successor trustee. The occupant, nephew of the deceased is living in the deceased's Virginia residence rent free. The deceased used the residence 30-40 % of the time. The occupant/nephew is the beneficiary of the deceased as to the residence; i.o.w. he, the nephew will become the legal owner of the residence.
There is an existing mortgage and second on the home of about of about $280,000.00 which the nephew will assume. The home has an estimated F.M.V. of $340,000.00. It will take some time to transfer the home to the nephew due to technical legal complications not at issue.
The nephew states he was told not to pay the mortgage payments until the property is in his name.
Question: can the estate charge rent pending transfer? The reasonable rent is more than the mortgage payments. Q2 If occupant refused to pay rent or mortgage can he be evicted? Regardless I am aware he will receive title to the property.
Q3 I ask these questions because as trustee I have an obligation to other beneficiaries
not to waste trust funds. Q4 Do I breach my obligation if I do not pursue rent or payment of mortgage?
Questions:
Submitted: 1 year ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

To answer your questions:
Question: can the estate charge rent pending transfer?
If the trust did not yet transfer ownership, it is possible provided the trust language does not deny such an action. But please be aware that the courts also look to intent of the trust, so if he complains and files in court that the trustee is intentionally attempting to harm the beneficiary's interest by charging rents, he may prevail.

The reasonable rent is more than the mortgage payments.
That may be, but the advice given to the beneficiary is accurate--until the property is under his name, he is not required to pay rents or provide maintenance, that is the responsibility of the trust.

Q2 If occupant refused to pay rent or mortgage can he be evicted?
Yes, to the rent, no to the mortgage. He has no legal duty to assume the mortgage until he assumes ownership.

Regardless I am aware he will receive title to the property.
That is why seeking an eviction may be seen as a fiduciary duty violation or interference with his property rights.

Q3 I ask these questions because as trustee I have an obligation to other beneficiaries
not to waste trust funds.
I agree, and if there are other beneficiaries involved, demanding rents become more legitimate and a more proper decision under your own fiduciary requirements.

Q4 Do I breach my obligation if I do not pursue rent or payment of mortgage?
No, you do not, not in this instance, since the occupant is the future owner of premises. And as stated, he is not required to take over the mortgage as yet.

Good luck.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 38558
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Dimitry K., Esq.
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Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.