People often ask me how I can do probate work. They tell me of all the horror stories they have heard and how it can tear families apart. Often people tell me of their own personal experiences after losing a parent and how the parents had no Will or Trust in place and as a result, they fought for years with their siblings over who gets what. The sad truth is that this can happen. I have seen my fair share of probates where a family member dies and they leave behind a few assets and all of a sudden brothers and sisters start fighting, cousins come out of the woodworks, a missing aunt produces a Last Will and Testament, which says she gets everything, etc. I have seen a lot of crazy scenarios. However, I would say that 90% of the time, everything goes smoothly, and families actually come together during their time of grief. That being said, the one area where siblings tend to disagree is when it comes to deciding what to do with the decedent’s home.
In most people’s estates, their home 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 home after they die; it is generally up to the beneficiaries to decide what to do with it. This is where the problems tend to come in.
Here are a few real-life “facts” that come into play: sometimes there is a mortgage on the property or homeowner’s association dues that the beneficiaries may not be able to pay; one sibling may be living in the property (often rent-free); the beneficiaries may live in another state from where the property is located; one sibling may think it better to keep the property as a rental property or that the market is not good right now and that they should wait to sell; another sibling may be strapped for cash and they want to sell ASAP; the beneficiaries may not agree on which realtor to use and how much the property is worth; one beneficiary may think it better to fix up the place first and the list goes on and on and on. I can tell you that these are very common scenarios that can and do occur.
When it comes down to it, the beneficiaries usually agree on what to do with the property and they usually agree that it is in the best interest of everyone to sell the property. Most people do not want to maintain the property and pay the taxes or deal with the property especially when they have their own mortgage to deal with. Also, most 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 90% of the probates we do, everyone gets along, and they all agree what is to be done with the property.
However, sometimes there are one or two beneficiaries (usually siblings), who just can’t seem to get along and they don’t want to sell. Usually, these same ones not wanting to sell are living in the property and don’t want to lose their free ride. This puts the other beneficiaries in a difficult position and often feeling like there is nothing they can do.
So, what happens if one of the beneficiaries does not want 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 up a good fight. However, I always tell my clients to try peace first before going to war. Peace will always be less expensive, and nobody wins in war. Emotions are generally high during probate (as someone has just died) and now there is fighting amongst siblings. This might be a deep-rooted issue that has been going on for years and now that the parents have passed away, all bets are off. Everyone is out for blood.
Fine. Like I said, I’m ok with that. However, I caution my client and let them know that you are out for blood now, and you may be willing to spend some money now, but the wheels of justice move slowly and the path towards justice is expensive. You may be willing to open up your wallet now, but in a few months, you may be a lot less willing and it will be too late because we have already started. So, I almost always 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 part, then that is usually a cost-effective and emotionally less draining method. The customer may have to pay a little more, but it could be worth it in the long run. Or the option may not even be a buy-out. Maybe this sibling wants something other than money (though 99.9% it’s money). Either way, reach out to them and try and settle amicably without more litigation.
Option 2 – File a Partition Action (force the sale of the property)
Unfortunately, there is not much you can do if the person will not agree to settle or sell the home. There may be other legal tactics you can do, but generally, if the property must get sold (or you want to sell the home) and the other heirs do 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, “[w]hen two or more beneficiaries are entitled to distribution of undivided interests in any property, the personal representative or any beneficiary may petition the court before the estate is closed to partition the property in the same manner as provided by law for civil actions of partition. The court may direct the personal representative to sell any property that cannot be partitioned without prejudice to the owners and that cannot be allotted equitably and conveniently.”
In a partition action, assuming all requirements were met, a judge will order that the property be sold and that the proceeds be divided accordingly.
In Florida, if a probate is already opened, then the partition action may proceed in the probate case. If a probate is not opened, a separate lawsuit will have to be filed. See Florida Statutes Chapter 64. (You can also do a partition action in another lawsuit though this tends to be more costly and lengthier).
At the end of the day, reaching a settlement is likely more desirable than partitioning the property. Again, it takes more time and it takes more money. However, it is a very useful and effective tool when necessary. We often have prospective customers seeking probate services who are hesitant to do anything because they feel that their siblings won’t agree on what to do with the property and thus, they just don’t do anything. We also get phone calls from realtors who say they have a prospective customer but not all the owners agree on what to do with the property.
To both, I would say you have options. At the end of the day, you can still get the property sold.
In closing, just because not all beneficiaries want to sell the property, you can still force the sale. Don’t let one 35-year-old freeloading son who doesn’t want to sell his parents’ house because he wants to keep living there rent-free for the next 50 years hold up the other siblings from selling the property and getting closure and you from getting your commission check!
If you have any questions or need help with a partition in a probate action, please contact Stivers Law.