Which home from the will should be sold first?

You asked which of the two homes should be sold first with one promised in your aunt's will to one nephew and one to the other nephew. You did not indicate who would be making the decision as to selling one or the other. If your aunt is competent she will make the decision. If your aunt is not competent and she has an agent named in a durable power of attorney, the agent will do so. If your aunt really needs the money, both should be listed and the first to sell is it. Frankly, however, probably both should be sold or if her will cannot be changed because she no longer has the capacity to change her will. It will be unfair and contrary to her expressed intent to sell only one and leave the other nephew with only the remaining cash, if any, after payment of bills, final expenses and costs of the probate of your aunt's will. Another way of looking at the situation would be to estimate what the selling costs of selling each home would be and offer the homes to each nephew to purchase with a discount factored for the selling costs into the price. If both purchased your aunt would be provided with liquidity and if one purchased and the other did not, either the will could be amended or the one that did not would perhaps have to pay half of the closing costs to the other from his 50% of the remaining proceeds at the time of your aunt's death. Having said that, if your aunt is competent, she could consider changing her will to provide that both homes be listed with a contingency as to the listing ending on one as soon as the other has an acceptable offer. Her will could provide that the residue of funds at her death would go to the nephew to whom the home that sold was to go to and that the other nephew would have to reimburse the one whose promised home was sold for the difference between the selling price and the amount of money left to the nephew whose home was sold. For that matter both nephews could agree on that arrangement even if their aunt was not competent but would have to come to an agreement which would be written up and signed. That is a suggestion but any agreement they reached or your aunt feels is fair could be adopted. Finally, it also should be considered that the home she resided in prior to going into a nursing home may be exempt from consideration for qualifying for assistance which would, on a net wealth basis, could favor liquidating the caretakers home although if the home she occupied passes under her will, the home could be subject to the liability for the assistance payments she received. Again this raised issues about how the situation could be addressed to make the outcome more fair to both of her nephews. Unless all the facts are known and the answer fit to the circumstances, this answer is just speculation. Your aunt, if she is competent, or her nephews should consult with an attorney about this issues and make sure the attorney has all the facts.

Not enough information to answer the question. However, the Will has no legal effect while she is alive. Is there a Trust? Is she competent? What does she want to do, it's her property until she dies. She can change her Will any time she wants to. She can sell any property that she may have mentioned in the Will.

If your aunt is competent, have her decide and communicate that decision to someone other than the nephew or caretaker. There is no bright line test on which house to sell. I would do my best to have the decision made by someone other than the nephew and caretaker because of the conflict of interest they would have in making the decision.

A very tough question, which can't really be answered on a website. The will does not "speak" until your aunt passes away. First question is, is your aunt still competent? If yes, it is her call which house gets sold. If no, and you are acting under power of attorney, it gets complicated; you need to respect her estate plan, but that will not be easy to do. In that case, you need a lawyer to work through this so you do not end up with liability to a nephew who loses out.

It's completely up to your aunt at this point. The fact that an asset is identified in her Will today is entirely irrelevant. Your aunt's Will becomes effective when two things happen: (1) she dies, and (2) the document is admitted to probate. Before those two events occur, your aunt can do whatever she chooses to do with either piece of property.

Unfortunately, neither home can be sold unless your Aunt consents and is of the mental capacity to sign legal documents. If this is not the case, you must seek guardianship and then you may assist in the sale of the homes. There really is no legal consequence to choosing one home over the other. If one home is sold and no longer able to be inherited, the gift "lapses." This simple means that the gift is no longer available and the beneficiary of that gift does not receive it. If you have a power of attorney over your Aunt ( and if she is legally able to sign it), you could assist with selling the homes. Also, if the caretaker has title to the home, you will not be able to sell it as this home is not owned by your Aunt.