Last Update: 9/20/20
Heirs, Including Siblings, Forcing The Sale Of Inherited Real Property
In Florida, when a parent or other family member passes away owning real estate and he/she is 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 heirs named in the decedent’s Last Will and Testament after a formal probate is opened. (If the decedent dies without a will, then the real estate is transferred in accordance with Florida’s intestacy statutes, which normally requires a probate administration.)
Once an estate is opened, the decedent’s property moves through the probate process under the guidance of the personal representative(s). Once the estate is ready to distribute the property to the beneficiaries, Florida real estate law requires that certain legal documents be recorded in the public records to reflect a change in ownership and to clear any title issues, including tax-related matters. Often times, this happens by delivering a Deed to the heirs named in the will. Once all of the documentation has been recorded, the heirs then become the recognized owners of the property.
Brothers and Sisters Sharing Ownership Of Inherited Property
Brothers and sisters that inherit real estate end up sharing undivided joint ownership in the real estate. Legally speaking, the siblings inherit the property as “tenants-in-common,” meaning, each has equal rights to the property (including its profits) but there’s no line or boundary that physically 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 South Florida, 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 place, splitting the net proceeds.
Or, maybe the heirs agree to keep the real estate as an investment property. They rent it out and have a property manager handle the day to day responsibilities of being a landlord.
That’s what happens when everyone agrees; however, 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.
Problems When Siblings Inherit A House
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.
Based on years of experience, here are a few of the common questions that arise in these brother-sister disputes:
- How do I sell the house after probate if my brother (or sister) won’t cooperate by allowing a buyer to inspect the property?
- What can I do if I’m trying to sell the property we inherited 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?
- What can I do if my sister or other sibling, is living in our inherited house and won’t move-out or let me rent it to someone else?
- How do I deal with my brother, or another sibling, who lives in our inherited home and they say they will sell the property but they never sign the paperwork?
Partition Lawsuits Will End All Disputes Over Inherited Real Estate
The answer to a sibling conflict over inherited property is to file a partition action. A partition action is a formal adversarial lawsuit filed in the probate court where their parent’s Last Will and Testament has been administrated. The partition lawsuit is filed under Section 733.814 of the Florida Probate Code by either the sibling or the estate’s personal representative.
However, 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 a Florida real estate lawyer to file a partition lawsuit under a different Florida statutory law. Chapter 64 of Florida Statutes sets forth the requirements for filing a non-probate partition action in Florida.
Under this statute, partition lawsuits 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?
A partition starts with the filing of a lawsuit complaint in the county where the property is located. Then the heir being sued gets formal notice of the lawsuit (a licensed process server gives the heir the lawsuit) and then the action follows standard Florida lawsuit procedures. There will be fact-finding by the parties (through formal discovery, including requests for production of documents and even depositions), possible court hearings, and ultimately a judgment (unless a settlement is reached) over the partition request.
If a judgment is entered, which does not happen often because the parties usually settle the matter by either agreeing to sell to a 3rd party or one heir buys out another, the property will be sold and the court order will be recorded in the public records to give notice to the world that legal title of the property has changed (meaning, the property has been partitioned and sold to a new owner). See, Model Land Co. V. Crawford, 155 Fla. 323, 20 So.2d 122 (1944).
Note: In July 2020, a new law went into effect in Florida that impacts the partition of “heirs property”, which is real property that is inherited, owned by the heirs as tenants in common and where there is no agreement that governs the partition of the property. Under the new law, if a Floridian dies without a will, an heir cannot freely sell his/her portion of the “heirs property” to a third party. That’s because the law gives the other heirs a “right of first refusal” to buy the portion of the “heirs property” being sold.
Money Spent By Sibling On Mortgage Payments, Taxes, Insurance, etc.: What If One Sibling Paid Everything?
When there is a request to partition inherited property between two siblings, the brother or sister who made the mortgage payments, paid the taxes and insurance, and spent money on the upkeep and repair of the home, will get a credit for one-half the amount of payments they made that are determined by the court to be “reasonable.” See, Potter v. Garrett, 52 So.2d 115 (Fla. 1951).
Important Issues To Consider When Trying To Resolve Sibling Inheritance Disputes
Suing your sister or brother, or another heir, over an inheritance dispute is a serious matter and something that should never be undertaken without considering how it may impact your family dynamics. However, when all else fails, Florida law is there to help.
Cases involving the sale of inherited property can be difficult to resolve (because of issues related to correctly allocating expenses and addressing any lost revenue between the parties) but with an aggressive yet compassionate approach, it can be done and be done fairly. The good news is a partition lawsuit will force the sale of the property, whether it is to a third party or it is one heir buying out another heir.
A good piece of advice for those who have inherited a property in Florida and are having difficulty getting everyone to agree to the sale of the asset, is to 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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