Posted By Larry Tolchinsky on May 19, 2015
Last Update: 12/04/16
In Florida, when a parent passes away owning real estate and they are the only owner or the only surviving owner, the property, whether it is the family home or the family vacation property, becomes part of the deceased parent’s probate estate. In most circumstances, this means that the property can only be transferred to the beneficiaries named in the decedent’s Last Will and Testament after a probate is formally opened. (If the decedent dies without a will, then the real estate is transferred in accordance with Florida’s intestacy statutes, which also normally requires a probate administration.)
Once an estate is opened, the decedent’s real property moves through the probate process under the guidance of the personal representative(s). Once the estate is ready to distribute the estate assets to the beneficiaries, Florida probate and real estate law require legal documents to be prepared and recorded in the public records in order to reflect a change in ownership and to clear any title issues, including tax related matters. Often times, this happens by preparing a new Deed, which will name, as grantees, the parties named in the will as beneficiaries of the real estate. Once all of the the documentation has been recorded, the beneficiaries (i.e. the decedent’s children) then become the recognized owners of the property according to our real estate records.
Brothers and Sisters Sharing Ownership of Inheritance
Often, this means that brothers and sisters end up sharing ownership in Florida real estate. Siblings become co-owners of real estate. Legally, they inherit the property as “tenants-in-common” or joint owners of the home (or condo, or land) with their interests being undivided. Each has equal rights to the property, but there’s no line or boundary that separates who owns what portion of the property.
Brothers and Sisters Inheriting Florida Real Estate: Co-Ownership
When things go smoothly, the siblings agree on what to do with the property. For instance, everyone agrees to sell the condo in Fort Lauderdale, the second home in Miami Beach, the retirement home in the over-50 community. The brothers and sisters get together, work with a Florida real estate agent and sell the property, splitting the net proceeds.
Or, maybe they all agree to keep the property as an investment. Working together, they rent the place and have a Florida property manager handling the day to day responsibilities of being a landlord.
That’s when everyone agrees. All too often, things don’t go smoothly in these situations and family conflicts pop up over what to do with the inherited real estate.
Disputes Between Brothers and Sisters Over Inherited Real Estate
Shared ownership can lead to disagreements over what to do with the inherited property. Usually, the conflict arises over one or more siblings who want to sell the real estate and another who either does not want to sell it, or does not agree on the terms of the sale.
Common questions in these brother – sister disputes include:
- How do I sell the house after probate if my brother (or sister) won’t agree to it or cooperate with the sale?
- What can I do if I’m trying to sell the property we inherited in Florida and my brother (or sister) will not agree on a sales price?
- How can I protect myself when my sibling is making me a low ball offer to try and buy me out of my inherited share of our parent’s home?
How Does a Brother or Sister Deal With Inherited Real Estate and a Stubborn Sibling?
The answer in these sibling conflicts over what to do with the inherited property is a partition action. This is a formal action filed as an adversary proceeding in the probate court where their parent’s Last Will and Testament has been filed. It is filed under Section 733.814 of the Florida Probate Code by either the sibling or the estate’s personal representative and it is a formal request, asking the probate court to partition the property.
If the estate has been closed, then the probate court request is not an option.
In these situations, the brother or sister who is in need of help must hire their own Florida lawyer to file the request for a partition under the Florida Civil Practice and Procedure Code. Chapter 64 of Florida Statutes explains how all partition actions are to be filed in Florida.
Partition actions are lawsuits that can be filed by any of the owners of the land: i.e., “one or more of several joint tenants, tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided.” Florida Statute 64.031.
What Happens When Siblings Sue For Partition Of Inherited Real Estate?
The partition request happens in a lawsuit, and it means that there must be formal notice (service of process on the defendant) just like any other lawsuit and the action will follow standard Florida lawsuit procedures (in accordance with the Florida Rules of Civil Procedure). There will be fact-finding (through discovery, including requests for production of documents and even depositions) and possible court hearings, and ultimately a judgment (unless a settlement is reached) over the partition request.
If a judgment is entered, it will be filed in the real estate records to document that legal title of the property has changed (meaning, it has been partitioned to new ownership by order of the court). See, Model Land Co. V. Crawford, 155 Fla. 323, 20 So.2d 122 (1944).
Money Spent By Sibling On Mortgage Payments, Taxes, Insurance: What If One Sibling Paid Everything?
When there is a request to partition the inherited property between two siblings, the brother or sister who paid mortgage payments, taxes, and insurance as well as any other money spent on upkeep and repair of the home, would get credit for one-half the amount of payments they made that are ruled to be “reasonable” by the court. See, Potter v. Garrett, 52 So.2d 115 (Fla. 1951).
Resolution of Sibling Inheritance Disputes Over Real Estate
Suing your sister or brother, or other heir, over an inheritance dispute is a serious matter and something that should never be undertaken without lots of consideration of your options and investigation of all your options under Florida law.
Cases involving the sale of inherited property can be difficult to resolve (including knowing how to correctly allocate expenses and lost revenue between the parties) and an aggressive yet compassionate approach can be vital in fairly resolving these disputes.
A good piece of advice for those who have inherited property in Florida is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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