How to Divide a Family House in an Estate Frequently Asked Questions

The options for how to divide a family house in an estate depend on a variety of factors including whether property is still in probate, what the will states, and whether the beneficiaries or co-owners agree on how to the property. The options include:

• Selling the house during probate
• Selling the house after probate
• Family members buying interest from other family members
• Partitioning the house

Probate is the process during which the executor or estate administrator disposes of the property of a decedent. During probate the executor has the authority to manage probate property, including selling property if appropriate. If a house is part of the probate estate the executor must first look to what the will instructs. For example, if the house is left to 3 beneficiaries, but the decedent instructs the executor to sell the house, the executor must do so. The executor would then give the proceeds from the sale of the house to the beneficiaries. As a New York probate administration lawyer will explain, generally the family does not have control over how the estate property is managed during probate. Thus, the family members, particularly those who are not beneficiaries, have little input as to how to divide a family house in an estate during probate. It is up to the executor or estate administrator. However, the executor must do what is in the best interest of the estate.

Once ownership of the house has been transferred to the beneficiaries or heirs, the executor no longer has authority over the property. The owner or co-owners can decide how to dispose of the property if they choose to do so, including one or more family member buying out others.

Partition is an option for co-owners of real estate such as a family home, in situations where one or more co-owners wants to sell the property but the other co-owner or co-owners does not wish to sell. Because the law does not like the idea of forcing someone to maintain ownership of property that he or she does not want, along with the financial responsibility that goes along with property ownership, the law provides that a co-owner can petition the court to partition. The court will force the sale of the house and give the former co-owners the proceeds based on percentage of ownership. While not everyone will be happy with partition, in cases where owners cannot agree, with the help of a skilled probate administration attorney in New York, partition may be the best solution for how to divide a family house in an estate.