what is the best way for a brother and sisster to divide their parents estate?
People often ask me how I can do probate piece of work. They tell me of all the horror stories they have heard and how information technology can tear families apart. Oft people tell me of their ain personal experiences afterwards losing a parent and how the parents had no Will or Trust in place and every bit a issue, they fought for years with their siblings over who gets what. The sad truth is that this can happen. I have seen my off-white share of probates where a family member dies and they leave backside a few assets and all of a sudden brothers and sisters start fighting, cousins come out of the woodworks, a missing aunt produces a Final Will and Attestation, which says she gets everything, etc. I accept seen a lot of crazy scenarios. Still, I would say that 90% of the time, everything goes smoothly, and families actually come up together during their time of grief. That beingness said, the i area where siblings tend to disagree is when it comes to deciding what to do with the decedent'south home.
In nigh people's estates, their dwelling house is their largest asset in terms of value. If a person did not do proper estate planning, which may include a Last Will and Testament that directs and instructs their Personal Representative / Executor what they would like to happen with their dwelling after they die; it is mostly up to the beneficiaries to decide what to do with information technology. This is where the problems tend to come in.
Here are a few real-life "facts" that come into play: sometimes in that location is a mortgage on the property or homeowner's association ante that the beneficiaries may not be able to pay; one sibling may be living in the holding (often hire-free); the beneficiaries may live in another country from where the property is located; i sibling may call up it better to keep the property equally a rental belongings or that the market is not adept right at present and that they should wait to sell; some other sibling may be strapped for greenbacks and they want to sell ASAP; the beneficiaries may non agree on which realtor to use and how much the property is worth; 1 beneficiary may think it meliorate to gear up upwardly the identify starting time and the list goes on and on and on. I can tell you that these are very common scenarios that tin and do occur.
When it comes down to it, the beneficiaries usually agree on what to do with the belongings and they usually agree that information technology is in the best interest of anybody to sell the property. Virtually people do non desire to maintain the property and pay the taxes or deal with the property peculiarly when they accept their own mortgage to deal with. Likewise, near people want the money they envision from the sale of the house and don't want to put in any of their own money into fixing it up or dealing with the perceived headaches of renting it out. And like I said earlier, in xc% of the probates we practise, everyone gets along, and they all agree what is to exist done with the belongings.
However, sometimes there are i or two beneficiaries (usually siblings), who just can't seem to get forth and they don't want to sell. Commonly, these same ones not wanting to sell are living in the property and don't desire to lose their free ride. This puts the other beneficiaries in a difficult position and oftentimes feeling like there is cypher they can do.
So, what happens if 1 of the beneficiaries does not desire to sell the property?
Option 1: Offer to Buy the Other Person Out
As a probate litigation attorney, I certainly do not shy away from putting upwards a good fight. Nonetheless, I always tell my clients to attempt peace first earlier going to state of war. Peace volition always be less expensive, and nobody wins in war. Emotions are generally high during probate (every bit someone has just died) and now at that place is fighting amongst siblings. This might be a deep-rooted issue that has been going on for years and at present that the parents have passed away, all bets are off. Everyone is out for blood.
Fine. Similar I said, I'm ok with that. Withal, I caution my customer and let them know that you are out for blood now, and you may exist willing to spend some money at present, but the wheels of justice move slowly and the path towards justice is expensive. You lot may exist willing to open upward your wallet now, but in a few months, you may exist a lot less willing and information technology will be too belatedly considering we accept already started. So, I almost e'er advise that we look for the path of least resistance which may be a buy-out.
If my client is in a position financially to buy out his or her sibling for their function, then that is usually a cost-effective and emotionally less draining method. The customer may accept to pay a lilliputian more, simply information technology could be worth it in the long run. Or the option may not even be a purchase-out. Peradventure this sibling wants something other than money (though 99.9% it'due south coin). Either way, accomplish out to them and try and settle amicably without more litigation.
Selection two – File a Partitioning Action (force the auction of the belongings)
Unfortunately, there is non much you can do if the person will not concur to settle or sell the habitation. There may be other legal tactics you can do, simply by and large, if the holding must get sold (or you lot want to sell the dwelling) and the other heirs practice not, then a partition action may be your only option.
So – what is a partition action?
Essentially, a partition action is a legal proceeding that forces the sale of a piece of property. In Florida, partition of a property in probate cases is governed by Florida Statute 733.814, which states, "[west]hen two or more beneficiaries are entitled to distribution of undivided interests in whatsoever property, the personal representative or any beneficiary may petition the courtroom before the estate is airtight to partition the property in the aforementioned mode as provided by police force for civil actions of sectionalization. The courtroom may direct the personal representative to sell whatsoever holding that cannot be partitioned without prejudice to the owners and that cannot exist allotted deservedly and conveniently."
In a partition action, assuming all requirements were met, a estimate will order that the property exist sold and that the proceeds be divided accordingly.
In Florida, if a probate is already opened, so the segmentation action may proceed in the probate case. If a probate is not opened, a separate lawsuit volition take to be filed. See Florida Statutes Chapter 64. (You lot can besides practice a partition action in some other lawsuit though this tends to exist more costly and lengthier).
At the stop of the twenty-four hours, reaching a settlement is likely more than desirable than partitioning the property. Again, information technology takes more time and it takes more coin. However, it is a very useful and effective tool when necessary. Nosotros often have prospective customers seeking probate services who are hesitant to do anything considering they experience that their siblings won't agree on what to do with the property and thus, they just don't do annihilation. We also get telephone calls from realtors who say they have a prospective customer but not all the owners hold on what to do with the property.
To both, I would say you accept options. At the end of the twenty-four hours, y'all can yet get the property sold.
In closing, just because not all beneficiaries want to sell the holding, y'all tin nevertheless forcefulness the sale. Don't allow one 35-yr-former freeloading son who doesn't want to sell his parents' house because he wants to go along living there rent-costless for the next 50 years agree up the other siblings from selling the property and getting closure and you lot from getting your commission cheque!
If you take any questions or demand help with a segmentation in a probate activity, please contact Stivers Law.
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Justin helps clients put together unique estate plans, including aid with Trusts, Wills, Powers of Attorney, and Advance Directives. He also works with clients to gear up Special Needs Trusts for their children.
Justin serves as a fellow member of the American Academy of Estate Planning Attorneys (AAEPA), a national organization comprised of legal professionals concentrating on estate planning. Equally a fellow member of the University, he receives ongoing, comprehensive training on modernistic estate planning techniques.
Source: https://probatefirm.com/probate-nightmare-how-to-deal-with-fighting-siblings-who-cant-agree-to-sell-the-home/
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