and Your Family
Frequently Asked Questions About Dealing With a Loved One's Home After They Pass Away
Dividing up a willed family home can be complicated particularly if your parent left confusing instructions or left it to multiple children at the same time. There are numerous different issues involved in managing disputes that arise from this. In many cases, this is because this terminology is included in the estate planning documents "my estate is to be divided equally among my children". But if the assets are real property or the family home it can be difficult to divide that in numerous situations.
- Do We Have to Go to Litigation and Probate Disputes If We Can Agree on an Equitable and a Fair Settlement?
- What Role Does the Executor or Personal Representative Have in Determining What Happens to Real Property?
- When Can We Do Something with the Family Home after It Has Been Left with Us in the Will?
- What Is Needed to Sell the House or Transfer the Deed?
- Do I Need My Own Representation If I Cannot Agree with the Other Siblings about Handling the Family Home?
In a best-case scenario, the siblings who are trying to figure out how to divide up a family home will come to a settlement outside of court. This could be distributing other assets so that one heir retains a property, negotiating buy-outs for those who want cash or selling the home and splitting the proceeds. This can also be allusive when the second parent passes away however, because most siblings will have very different ideas about what will happen to the family home.
The fate of the family home when both parents have passed is a complex estate planning issue and one that prompts a great deal of conflicts. It can be one of the most explosive ones handled by an executor when it comes to executing the terms of a decedent's will. Almost always, this requires that the process goes through regular probate to transfer the deed unless a living trust or other instruments stipulates a change in ownership. A summary or simplified probate that is less expensive and faster is only allowed for small estates. Retaining counsel is strongly advised for any sibling who may be affected by this situation particularly if real property is involved or they are not often familiar with the probate process.
It is not a good idea for an executor or the siblings to do anything with the estate assets, especially selling a home, until they have been granted the appropriate authority to do so. This is in fact one of the biggest mistakes that an executor can make and it could lead to further legal action.
Mixing personal money with estate money, distributing money before being ordered to do so by the court or borrowing from the estate could lead to further legal action filed by the siblings to have the executor removed. Executors could be held responsible for inappropriate distributions and misappropriations and if you believe that the executor managing your parents' estate has been involved in this kind of behavior or other examples of fraud, you need to retain your own attorney to discuss options for filing a lawsuit.
When a family home is involved in the management of a loved one's estate, there is a good chance that any siblings involved will need a probate court order to transfer deed or to sell the house. Furthermore, the executor has a responsibility to notify any other interested parties and all heirs about their intention to sell.
Furthermore, an appraisal is often required before proceeding with a sale and it is the executor's fiduciary duty to get a fair market price. If the siblings cannot agree on a solution outside of selling the home and splitting the proceeds and you believe that the executor has misappropriated the funds or have engaged in behavior that has not obtained a fair market price, this can lead to a civil suit.
If you cannot come to terms with your other siblings about what should happen to the family home, it is recommended that you consult with an experienced estate administration attorney who has years of experience handling these kinds of conflicts.