Inherited Property And Partition: When Your Sibling Won’t Sell

In this article, we’ll break down:

• What happens when one sibling is living in an inherited property and refuses to sell?
• Brothers and sisters and other heirs sharing ownership of inherited property
• 5 Common problems when siblings inherit a house
• The Uniform Partition of Heirs Property Act: Protecting Family Inheritances
• Partition Lawsuits Will End All Disputes Over Inherited Real Estate
• Important Issues To Consider When Trying To Resolve Sibling Inheritance Disputes

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 require 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. Oftentimes, 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.

Key Takeaway:

What happens when one sibling is living in an inherited property and refuses to sell?  When one sibling living in an inherited property refuses to sell in Florida, the other co-owning siblings have a legal right to file a partition action to force the division or sale of the property. Florida law recognizes partition as a matter of right for co-tenants and provides specific statutory procedures to resolve disputes when co-owners cannot agree on the disposition of jointly owned real estate.

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.

5 Common 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 5 more 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 lowball offer to try and buy me out of my inherited share of our parent’s home?
• What can I do if my sister or another 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?

The Uniform Partition of Heirs Property Act: Protecting Family Inheritances

In 2020, Florida adopted the Uniform Partition of Heirs Property Act (UPHPA), Florida Statute 64.201-214, to address the challenges of managing and dividing inherited real estate where multiple family members share ownership as tenants in common. The law provides protections for heirs, including the right of first refusal, which allows co-owners to purchase the share of a family member who wishes to sell before it is offered to an outside party. It also requires a fair market value determination of the property to ensure equitable compensation for all co-owners. Additionally, if a sale is necessary, the law mandates that it be conducted in a commercially reasonable manner. These safeguards help preserve family inheritances and ensure a fair resolution to disputes over heirs property. The enforcement of the act is carried out through the filing of a partition lawsuit, which provides a formal process to resolve disputes.

Partition Lawsuits Will End All Disputes Over Inherited Real Estate

The answer to a sibling conflict over inherited property is to file a partition lawsuit. A partition lawsuit can be filed in the probate court where their parent’s Last Will and Testament is being administrated.  The 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 is 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 statutory law.  Chapter 64 of the Florida Statutes sets forth the requirements for filing a non-probate partition action in Florida, including a lawsuit under the Uniform Partition of Heirs Property Act.

Under the UPHPA, any co-owner of property held as tenants in common, can file a partition lawsuit. This includes siblings or other family members who inherited the property. The law allows any tenant in common owner to initiate a legal process to resolve disputes over the management, use, or sale of the property, particularly when there is no agreement among the co-owners on how to handle the property.

Note: The UPHPA provides a more structured and protective framework for resolving disputes over inherited property, ensuring fairness and preserving family legacies, whereas Florida’s general partition laws under Chapter 64 (64.011- 64.091) are broader and lack the specific protections tailored to heirs property.

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).

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.

If you find yourself in a dispute over the family home or the family vacation property, understanding your rights is the first step toward a resolution that respects both the law and your family’s legacy. A good piece of advice for those having difficulty getting everyone to agree to the sale of inherited property 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.