Ask Brian is a weekly column by Real Estate Expert Brian Kline. If you have questions on real estate investing, DIY, home buying/selling, or other housing inquiries please email your questions to [email protected].
Question from Pauline in GA. Hello Brian, My divorced mother passed away three years ago leaving the fully paid family home to my brother and me. My brother lives in the same town (I’m in the same state but 95 miles away). He moved into the house about a month after the funeral. He has been paying the taxes and does routine maintenance but he doesn’t pay any rent because he says there is no one to pay the rent. More important to me is that he does not want to sell the home. He says I can come and live there rent-free also but not to bring my husband because they have never gotten along. Jim (my brother) and I have never been close but we have been civil and friendly over the years. I don’t want to move back home and certainly not without my husband. I countered Jim’s offered by asking him to buy me out so he could fully own the home for a cost that is half of the value. He replied no, that it is the family home and we’re going to keep it just the way it is. He says that as long as he is paying the taxes, that he’s in control. Brian, what rights do I have?
Answer: Hello Pauline. The short answer is that you probably need a probate attorney. You said that your mother left the home to both of you but you didn’t mention if there is a will, a trust, or just verbal instructions. It would be better if there is a will or a trust but that probably isn’t critical as long as no other family members are claiming a right of ownership. Without a will or trust, it’s generally up to the beneficiaries to decide what to do with the property. In this case, it looks like you and your brother are the only beneficiaries. And you probably both have an equal half interest in the property. Even if it is not an equal share, you still have legal rights to your share.
First of all, he has no right to live in the home as if it is his own. Also, paying the taxes does not entitle him to lay claim to it. You still own half of the home and have to agree with what will be done. If the two of you can reach an agreement, you might be able to go through probate court without hiring an attorney. But Pauline, in your case it sounds like you are going to need an attorney. So, you might as well hire one to have him or her open a case with the probate court.
I don’t know of any state where you can settle an estate that doesn’t have a will or trust without going through probate court. Generally, settling an estate without a will or trust includes completing the following steps through a probate court:
Pauline, unfortunately, the fact that your brother wants to keep the home in the family and you don’t complicate things a little by making it unlikely the two of you can present the court with an agreed-to plan. It doesn’t matter if he wants to keep the home for sentimental reasons or because it’s a free ride for him. Your offer to sell your half to him is reasonable as long as you can agree on a fair price. But if he continues to reject your offer, you still have a right to sell your half and a legal partition action may be your best option. A partition action is a legal proceeding that forces the sale of a piece of property. It can vary slightly in different states but laws do govern the distribution of undivided interests in any property. In a partition action, assuming all requirements are met, a judge will order that the property be sold and that the proceeds are divided accordingly.
Still, reaching a settlement with your brother is likely more desirable than partitioning the property. Partitioning is a very useful and effective tool when necessary but it does take time and money. Your next step might be encouraging your brother to educate himself a little about what can legally be done if the two of you don’t reach an agreement. You might specifically suggest that he take a close look at how a partition action works. In the end, he is almost certain to come out financially ahead by reaching an agreement with you. He doesn’t have to agree to sell but you can still force the sale.
What suggestions or experiences can you share with Pauline and others to resolve a fight over the family home? Please comment.
Our weekly Ask Brian column welcomes questions from readers of all experience levels with residential real estate. Please email your questions or inquiries to [email protected].