How to Get Money Out of a Family House Frequently Asked Questions

During probate only the executor has the authority to sell a family house that is part of the probate estate. Probate is the process during which the executor has the legal authority to take control of estate assets, appraise the assets, pay estate debts, and distribute assets to the beneficiaries according to the terms of the decedent’s will.

Under New York law the executor has broad powers in how she (or he) chooses to manage the estate, including the power to sell estate assets. Some of the common reasons that an executor may sell a family house in an estate include:

• To get liquid funds to pay estate debts
• The will directs the executor to do so
• The beneficiaries who were willed the house ask the executor to do so
• It is in the best interest of the estate for the executor to do so

However, as a New York probate administration lawyer will explain, if the decedent left you the family house in her will, once the executor transfers ownership of the house to you, you have the right to sell the house or take out a mortgage on it in order to get money out of it.

It is common for a decedent to leave the family house to multiple beneficiaries such as siblings. This can create a problem for the beneficiaries if they do not agree on what should happen with the house. However, there are options including forcing the sale of the family house.

For example, Charlene passed away, leaving the family house to her five adult children. The oldest child, Ronald, was living with Charlene when she passed away. However, he only worked intermittently and did not contribute to the upkeep of the house or to the care of Charlene in the years immediately prior to her death. This created hard feelings between Ronald and the other 4 siblings. Ronald wanted to keep the family house and live in it, while the other 4 siblings wanted to sell the house.

Under New York law the possibilities include: Ronald buying out the 4 siblings, the siblings filing a complaint in court asking the court to partition the house, the siblings forcing a sale of the house.

Partition is an act directed by a court that divides real estate that has co-owners into separate portions representing the interests of each co-owner. Typically partition occurs when the co-owners disagree as to what they should do with the property. For example, one co-owner may wish to sell it, while other co-owners want to keep it. To initiate an action for partition, one of the co-owners must file a petition with the court. The court will investigate the property to determine if partition in kind is feasible. Partition in kind involves the dividing of the property itself among the co-owners. If partition in kind is not feasible, then the court will force a sale of the property, also known as a partition by sale.

If the property cannot be physically partitioned, then the court may order a partition by sale, or a forced sale. Once the property is sole, the proceeds are divided among the former co-owners based on their interest in the property. This is the most common result when there is a disagreement among co-owners about the sale of a family house.

Once the executor has transferred ownership of the family home to the beneficiaries, if all of the co-owners do not wish to sell, partition is an option for how to get money out of a family house. To learn more about how partition works contact a probate administration attorney in New York.