Keystone Law Group Managing Partner Shawn Kerendian discusses the five most common methods for dividing a home inherited by siblings. Read the complete article below for more details. Click the YouTube “Subscribe” button to be notified when new videos are published.
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How to Divide Inherited Property Between Siblings
If you are reading this article, chances are that you’ve inherited a house with siblings and are having disagreements with them around how to divide the property. It is smart you are taking steps to get informed on what’s involved in inherited property splits between siblings, as doing so is the best way to enforce your beneficiary rights in any legal disputes that follow.
When deciding how to split a house between siblings, the first thing you should do as a beneficiary is to consult the will or trust document. What percentage of the home have you been designated? Did the decedent leave instructions about whether to sell the home or keep it in the family?
When specific instructions regarding the property are not provided in the decedent’s estate planning documents, the executor or trustee generally has the right to proceed with disposing of it as they see fit, so long as doing so would be in the best interests of the trust or estate. Executors and trustees are fiduciaries, so it is their duty to do what is best for the estate or trust, respectively. This means that they sometimes have to make decisions that are not in line with what all beneficiaries want.
While inheriting land with siblings is common, it is more common for siblings to jointly inherit a house, which complicates matters, since physically dividing a house doesn’t make much sense if the siblings are not planning to reside in the house together. Some siblings may prefer to sell the home while their other siblings prefer to keep the home in the family. When disagreements such as this arise, who has the right to decide what to do with the property at issue? Can a sibling be forced to remain an owner of a home they don’t want?
When inheriting a house with siblings, it is important for you to voice your desires regarding the home (e.g., whether you would like to keep it in the family, rent it out or sell it) early in estate or trust administration, since the executor/administrator or trustee may be entitled to sell the property without obtaining consent from estate beneficiaries or trust beneficiaries first – unless, of course, the will or trust document forbids them from doing so.
At the same time, you should discuss your wishes with your siblings to try to get on the same page with them. If you cannot agree on a course of action, you can try to be proactive in reaching a compromise to prevent the differences in opinions from turning into a contentious court battle.
A house is often the most valuable piece of property siblings inherit from their parents or other relatives, which is why it’s important for them to hire a property dispute lawyer to represent their interests and enforce their rights in any disputes surrounding the inherited property. A lawyer can assist siblings with everything from communicating their preferences regarding the property to trying to force the sale of the property through what is known as a partition action. We discuss what partition actions are in more detail later in this article.
Common Disputes When Inheriting a House With Siblings
As previously mentioned, disputes are common when a will, trust or intestate succession laws require for there to be an inherited property split between siblings. Some siblings may wish to immediately sell the property, whereas the other siblings may wish to wait. Or, perhaps some siblings wish to rent out the property, whereas the other siblings wish to reside in it.
Whatever the situation is between you and your siblings, the last thing you want is for it harm your relationship with them. By understanding the kinds of disputes that can arise when inheriting property or land with siblings, you can try to get ahead of them and keep disagreements at a minimum, if not nonexistent.
It also may be a good idea to hire an attorney upon finding out you are inheriting a house with siblings. This way, you can learn about your options for dividing the property and have your interests represented by a knowledgeable professional in any negotiations that follow. Likewise, if a will or trust is directing the inherited property split between siblings, your lawyer can interpret the document to determine what each sibling is entitled to under it.
Continue reading to learn about the types of disputes that can arise when inheriting a house with siblings.
What Happens When One Sibling Is Living in an Inherited Property and Refuses to Sell?
If one sibling is living in an inherited property and refuses to sell, a partition action can potentially be brought by the other siblings or co-owners of the property in order to force the sale of the property. In general, no one can be forced to own property they don’t want, but they can be forced to sell.
That being said, partition actions can be expensive, so it may be a good idea for the co-owners of the property to have a discussion about other options. For example, maybe the siblings would be amenable to the sibling who is residing in the property paying them rent. Or, maybe they would be open to the sibling buying them out of their interests in the property over time.
Note that there were some reforms to California partition laws, which took effect in January 2023, that could affect the rights of co-owners to partition a property that is considered “heirs’ property.” You can read more about these reforms and what qualifies as heirs’ property later in this article. Chances are that if siblings have jointly inherited property from a parent or other family member, the property qualifies.
What Happens When Two Siblings Own a Property and One Dies?
If two siblings own equal shares of a property, then chances are they hold title as joint tenants or as tenants-in-common. With joint tenancy, when one co-owner dies, the other co-owner(s) automatically get the deceased co-owner’s interest in the property — which means the surviving co-owner(s) can do with their undivided interests in the property what they please.
With a tenancy-in-common, each 50% owner would have an undivided 50% interest in the property, but there is no right of survivorship between the co-owners. That means that if one co-owner dies, their 50% interest in the property will be disposed of by their estate plan or intestate succession laws and will not pass automatically to the surviving co-owner.
If there is more than one surviving co-owner and they wish to sell the property against the wishes of the other co-owner(s), they could try convincing the other co-owner(s) to buy them out of their interest in the property, or they could transfer their interest in the property to someone else. But if they wish to force a sale of the property on the open market, they may need to bring a partition action to force its sale.
What Happens When a Sibling is Living in a Deceased Parent’s House?
A sibling residing in a deceased parent’s house is not always problematic. For example, the parent’s will or trust could provide for that sibling to have use and enjoyment of the property for their lifetime, which would give them the right to live in the home.
On the other hand, if the house was left to three siblings in equal shares, and only one sibling is using the home, the other siblings may not regard that as fair, especially if the sibling who’s using the home is living in the home rent-free. In such an instance, a parition action may be appropriate to force the sale of the property if the siblings cannot agree on another course of action, such as a buyout deal. It also would be appropriate to evict the sibling from the home if they refuse to pay rent to the other siblings.
If a sibling is living in a deceased parent’s home during administration, then the executor/administrator or trustee should be sure to collect rent from them, or the estate or trust representative could be held personally liable for the estate or trust’s subsequent loss in value. If the sibling refuses to pay, the executor/administrator or trustee could potentially deduct rent from that sibling’s inheritance or try to evict them from the property so it can be sold.
What Happens if My Brother or Sister Is Living Rent-Free in an Inherited House?
If a brother or sister is living rent-free in an inherited house, there are a few questions to consider before taking action. First, is the brother or sister a co-owner of the home? Second, did the previous owner of the property provide them with use and enjoyment of the property for their lifetime?
If the property is co-owned by siblings, and one sibling is living rent-free in the property without having been given explicit permission to do so, the other siblings generally have the right to take legal action against them. For example, they could try to get a judgment against the sibling for unpaid rent or try to evict the sibling from the property altogether. They, likewise, could subject the property to a partition lawsuit, which may result in the property being sold, and the sibling having no choice but to move out.
Likewise, the siblings who are not residing in the property could request for the sibling who is residing in the property to pay them rent, buy them out or make another type of financial arrangement with them.
Remember that if the property in question is heirs’ property, normal partition rules may not apply.
If the sibling residing in the inherited property rent-free is not a co-owner, then they are subject to the same rules any tenant would be subject to if they were to refuse to pay rent.
That being said, if the previous owner’s will or trust provided the sibling with use and enjoyment of the property for their lifetime. then the sibling is free to continue living in the home rent-free.
What Happens if Siblings Inherit a House With a Mortgage?
When siblings inherit a house with a mortgage, things have the potential to get complicated. For example, what if one sibling has the capacity to make their share of the mortgage payments on the home, but the other siblings don’t?
Many siblings go the route of selling the property and dividing the proceeds from the sale among them. However, if siblings wish to keep the home, they will need to continue to make timely mortgage payments on the home in accordance with their proportional interests in the property.
Of course, it is possible for siblings to reach an agreement among themselves that varies from the solutions mentioned above. As an example, one sibling may agree to satisfy the entirety of the mortgage payments if the other siblings pay them back over time with interest.
No matter what course of action you decide to go with, it’s important to not default on mortgage payments. If you do, the home could become subject to foreclosure. Even if one co-owner has to step up to make the payments on their own, it would be preferable to losing the home, as they can always try to recoup their siblings’ share of the mortgage payments down the road.
When a decedent’s home has a mortgage, the executor/administrator or trustee generally will make mortgage payments on the home until they transfer title to the new co-owners, or they may even sell the home so the proceeds from the sale can be distributed in the form of an inheritance.
Common Solutions for Inherited Property Splits Between Siblings
There is a lot to consider when deciding how to divide inherited property between siblings, such as your financial situation and whether you can afford the home if you were to take ownership of it. You also have to consider the preferences of your siblings.
The following are the most common options for splitting an inherited home with siblings:
- Selling the Home: The easiest solution when inheriting a house with siblings is generally to sell the house and divide the proceeds from the sale among the siblings according to the percentage shares each sibling has been designated by the will, intestate succession or trust.
- Renting the Home: If siblings are not ready to part with the home but no one wishes to live in it, they can try to lease the home and generate rental income to divide among them.
- Buyout: If one sibling wishes to keep the home and the other siblings do not, the sibling who wants the home can offer to buy out their other siblings’ interests in the property.
- Private Arrangement Between Siblings: Siblings may be able to reach an agreement among themselves about how to divide the property. For example, if a decedent leaves siblings equal shares of their primary residence and a vacation home they own, one sibling could take the primary home and the other could take the vacation home if they are worth roughly the same amount. Similarly, if one sibling wants the home but cannot afford to buy out their sibling’s share, they could arrange to buy out their sibling’s share by making payments with interest over time to their sibling or taking a loan out against the property.
- Partition Actions: When an agreement about how to divide inherited property between siblings cannot be reached, a type of lawsuit known as a partition action can be filed to try to force the sale of the property. Previously, there was little non-partitioning siblings could do to stop the partitioning of property; however, because of recent reforms to California partition law, many properties that qualify as “heirs’ properties” will be subject to different rules and procedures, which are designed to make it easier for non-partitioning co-owners to maintain their interests in a property.
Can Siblings Force the Sale of Inherited Property?
You’ve inherited your parents’ home with your siblings. You want to keep it in the family, but your siblings want to sell. You’re wondering: Can siblings force the sale of inherited property? What steps can I take to try to maintain ownership of the home?
When a property has two or more co-owners, its sale generally can be forced through a type of lawsuit known as a partition action. For a partition lawsuit to be started, at least the following conditions must be met:
- A co-owner wants to sell the property, but the other co-owners won’t agree to sell.
- The property cannot be physically divided (e.g., the home cannot fairly and equitably be split up).
The sale of property generally can be forced by siblings even in instances where the majority of siblings wish to keep ownership of the home, as the court cannot coerce anyone into remaining a co-owner of a property they don’t want. However, as we discussed earlier, since a home being jointly inherited by siblings may qualify as heirs’ property, the outcome of a partition lawsuit between siblings may not be as clear-cut as the outcome of a partition lawsuit between persons who are not related to one another.
It’s good to keep in mind that even if a partition action is started, it can be settled out of court. At the same time, co-owners seeking to keep ownership of the home could try to make a buyout agreement as part of the partition lawsuit, If an agreement cannot be reached using this approach, the court will usually order for the property to be sold on the open market.
The winner of a partition lawsuit can ask the court to award them attorney fees and costs. If the court issues the order, the party defending the partition action could have to cover the litigation costs of the other side, or the court could allow the partitioning party’s legal costs to be covered by the proceeds from the sale of the property.
What Happens if the Property That’s Subject to a Partition Suit Qualifies as “Heirs’ Property”?
On January 1, 2023, reforms to California’s existing partition laws took effect. These reforms solely apply to properties that qualify as heirs’ properties.
Heirs’ property is any property that has indications of familial ownership and was passed down to one or more co-owners from a relative. In cases of inherited property splits between siblings, these conditions likely exist (although if there are other agreements governing the use or disposal of the property, the new reforms may not apply, even if the property at issue does meet the conditions for being heirs’ property).
Under normal circumstances, partitioning co-owners can force the sale of the property, leaving non-partitioning co-owners little recourse. Even if the non-partitioning co-owners are willing to buy out the partitioning co-owners interests’ the property, the partitioning co-owners generally are under no obligation to accept the proposed buyout agreement. However, with the new reforms, if the property at issue qualifies as heirs’ property, the non-partitioning co-owners must be provided with an opportunity to buy out the partitioning co-owners for a price that represents their proportional interests in the property, and if the non-partitioning co-owners are able to manage this, then the partitioning co-owners generally have no choice but to sell their interests to them.
The new reforms also strengthen the court’s preference for partition by kind (i.e., the fair and equitable division of property), even in instances where the partitioning co-owners are seeking a partition by sale. When inheriting a house with siblings, a partition by kind usually is not plausible, since dividing a home fairly and equitably can be difficult. But let’s suppose the home being jointly inherited by siblings is a multi-family home. In this instance, a partition by kind may be feasible, and if it is, the court may prefer this approach, since it would allow each co-owner to own an undivided interest in the property, which they can use or dispose of how they please.
The court will consider the following factors when deciding whether to order a partition by kind or a partition by sale: (1) whether any of the co-owners of the property would be rendered homeless as a result of a partition by sale; (2) whether the value of the property would be negatively impacted by the division of ownership; (3) whether the property carries any cultural, sentimental or historic significance, among other relevant factors.
The last notable effect of the reforms has to do with partitions by sale. Before, the court’s preference had been to order sales of partitioned properties through public auctions; however, because evidence suggests that open market sales result in significantly higher sales prices, its preference has since shifted.
Is It Necessary to Involve the Court When Inheriting a House With Siblings?
Although there are exceptions, homes being passed down through a will or California’s intestate succession statutes generally need to pass through the probate process,which is court-supervised. Homes being passed down through a trust, on the other hand, generally are not subject to any court proceedings. The only instances in which they might be subject would be if a dispute over the trust (such as a trust contest), a dispute over the property (such as an 850 petition) or an inheritance dispute arises.
As for dividing inherited property among siblings, once title to property has been transferred to them, it is usually not required for the court to get involved unless the siblings cannot reach a mutual agreement on their own about how to do it. Only when siblings cannot agree on a course of action does it become necessary to bring a partition lawsuit.
When Are Partition Actions Not Appropriate?
When a piece of property is co-owned, partition actions are generally a viable solution for any co-owner seeking to terminate their interest in the property through a sale. Certain titles to properties, however, are binding. In these instances, it may not be possible to partition the property.
If you’re curious how to stop a partition action, know that doing so can be difficult, unless the property at issue qualifies as heirs’ property. If you plan to nevertheless try, it is crucial you hire a probate lawyer to defend your ownership rights. In fact, working with a lawyer is recommended for those seeking to bring as well to achieve the best possible outcome for their case.
It’s important to remember that partition actions cannot be brought by persons who are not yet owners of a property. For instance, if you are inheriting a house with siblings, but the executor or trustee has not yet transferred title to you, you are not considered an owner of the home and therefore would not be permitted to bring a partition lawsuit.
If the executor or trustee is delaying transferring or selling the home because they are residing in it rent-free, this is not exactly ethical, but it also is not cause for a partition action. In this situation, it would be best to petition the court to try to have the party acting improperly removed and surcharged for executor/trustee misconduct. You can do this with the assistance of a fiduciary misconduct lawyer.
How to Divide Inherited Property Between Siblings as an Executor or Trustee
If you are an executor or trustee carrying out an inherited property split between siblings, it is crucial you follow certain steps to ensure the division of property is completed according to the proper procedures.
While it is important for any trustee or executor/administrator to know the rules and procedures relating to inherited property splits between siblings, it is particularly important for trustees and executors/administrators with conflicts of interests (e.g., if they are one of the siblings inheriting the home).
Their ultimate decision surrounding whether to sell the property or distribute it to beneficiaries should benefit all beneficiaries equally, not one over another. If they violate their fiduciary duties by being self-serving or favoring certain siblings, they could not only be removed from their role but they could be ordered to pay damages from their own pockets.
Executors/administrators and trustees should follow the steps below when carrying out an inherited property split between siblings:
- Track down the will or trust document.
- Examine the document to find instructions regarding the inherited property split between siblings.
- Create an inventory of the decedent’s property and value it.
- Satisfy all the decedent’s debts and creditor claims.
- Notify the beneficiaries about the inheritances they are due.
- Either sell the property (if the will or trust permits you to do so) or divide the property according to the terms of the will or trust.
- Divide the proceeds from the sale (if applicable) among siblings in accordance with the percentage of each’s ownership interest.
If you’re an executor, it’s particularly important for you to know what you can and cannot do as an executor, because some executors (those with full authority) are permitted to sell a home belonging to the estate so long as they provide advance notice to the beneficiaries and do not receive any objections to the proposed sale, whereas other executors (those with limited authority) will need to obtain court approval prior to formalizing the sale of a home.
Selling Inherited Property as the Executor or Trustee
The last step of splitting property is where it gets complicated. The obvious and least stressful way of proceeding would be to sell the home and divide the proceeds from the sale among the siblings; however, what do you do if one sibling wants to keep ownership of the property?
As the executor or trustee, you generally are entitled to make autonomous decisions about the estate or trust. Those decisions may include the right to sell estate or trust property without obtaining consent from the beneficiaries.
Whether you should proceed with selling property prior to consulting with the beneficiaries first is a different story. As a fiduciary, you are supposed to represent the best interests of the beneficiaries, so when making a significant decision, such as selling an inherited home, it is wise to involve them in the decision.
Tips for Navigating Inherited Property Splits Between Siblings
Inheriting a house with siblings is not only complicated in terms of dividing the property, but it’s complicated in terms of family relationships as well. In short, family relationships could be forever strained if the proposed course of action is not to the liking of one or more of the siblings.
While it is not always possible to avoid conflicts when dividing property between siblings, they can be kept to a minimum. Learn our tips for dividing property between siblings below.
Understand the Will or Trust
If a person died with a will or trust, it’s likely the document will contain instructions for dividing the home in question. For example, it may state that it should be divided equally among all the siblings.
If a person died without a will or trust, you can consult Keystone’s intestate succession chart to find out what percentage of the home you’re entitled to.
Discuss Your Wishes Regarding the Home With the Estate or Trust Representative
Because executors/administrators and trustees generally can sell property to divide proceeds from the sale among the beneficiaries of the property, it’s important to notify them early in administration if you would prefer for the property not to be sold. Of course, they may still opt to sell the property if the will or trust doesn’t forbid them from doing so, but at least you will have tried.
Discuss Your Wishes Regarding the Home With Your Siblings
If you are either already are a co-owner of the home or will be, then get clear about what you would like the outcome of the inherited property split with your siblings to be and communicate that to them. Perhaps you can find a solution that everyone finds agreeable early on.
Hire a Qualified Attorney
While a lawyer can get involved during any stage of the process, it is particularly important to have one in your corner if there are disagreements over how to carry out the inherited property split between siblings. A lawyer can help prevent the conflict from escalating, as well as help you and your siblings with finding a solution that is agreeable to everyone.
If the dispute does escalate to a partition action, winning the partition action will be a lot easier with a lawyer by your side.
Settle the Dispute at Mediation
When dividing inherited property between siblings, it is ideal to carry out this process without involving the court. If the court does have to get involved, the price tag of your case will likely skyrocket.
Mediation, which entails negotiations moderated by a neutral third party that you may choose to attend with a lawyer, is a great alternative to a full-blown partition lawsuit — and one that is a lot cheaper. What’s particularly useful about mediation is that it can be used to resolve a dispute surrounding the division of property, even if a partition lawsuit has already been initiated.
FAQs About Inheriting a House With Siblings
When siblings cannot agree on a course of action for dividing the property they jointly inherited, it can be a frustrating experience for everyone involved. We go over some of the most frequently asked questions surrounding this issue below.
What if there are disagreements over how to divide inherited land between siblings?
Inheriting land with siblings can be less complicated than inheriting a house with siblings, but not always. For instance, what if some portions of the land are more scenic? Likewise, what if one portion of the land has access to a water line and utilities and the others do not?
If a land is uniform throughout, it is possible the land can simply be physically divided among siblings according to the percentage shares they’ve been designated, either through a will or trust, or through intestate succession. Once the land is split, each sibling will have an undivided interest in the land that they can use or dispose of as they please. As an example, one sibling may decide to build a home on their portion of the land, whereas another sibling may decide to sell their portion.
If the land is not uniform throughout, then the same procedures that apply to dividing a house between siblings would likely apply to the land.
How do I buy out a sibling on shared property?
If you have inherited a property with one or more siblings, then you will have to check with them whether they are open to your buying out their interests in the property. If, for instance, another sibling wants to maintain their property interest, they may not be amenable to a buyout agreement.
Conversely, if your siblings are willing to sell their shares of the property, you can enter into a buyout agreement with them, but you should do this after having the property appraised so you will know how much to offer. Some buyout agreements consist of a sibling buying out their other siblings in full. Some call for the sibling wishing to buy our their other siblings to make payments with interest to them over time.
If your finances do not allow you to buy out your siblings, but you are adamant about keeping the home, you could ask your siblings if you could lease the property from them.
Keep in mind that for you to be a sole owner of the property in question, its title should be exclusively in your name.
What’s the process for selling a share of inherited property to a sibling?
The process for a sale of inherited property will be determined by whether the property has already been divided, the nature of the property, and what the other co-owners of the property want to do with it.
If the property in question was already divided among co-owners (meaning that each co-owner has an undivided interest in the property), then you can sell your share of the property to your sibling in the same way you would sell any real property. In other words, you would enter into a buyout agreement with them. Once this agreement is signed and you’ve received payment for your share, you must transfer title to your share of the property into your sibling’s name for them to be its owner.
If the property in question has not yet been divided among siblings and is still owned by a decedent’s estate or trust, then the executor or trustee, respectively, will decide whether the property should be sold or divided among beneficiaries and on what terms, so long as the decedent’s estate plan does not provide express instructions on such matters. It may still be possible to work with the executor or trustee to reach an agreement regarding the division of the property, and that agreement could involve one beneficiary buying out the interest of another.
Am I permitted to reside in the inherited home?
Whether or not you will be allowed to reside in the home you were left depends on a variety of factors, which can include the terms of the will or trust, the executor’s or trustee’s discretion, and any agreements reached between you and your siblings. Hypothetically, if a will or trust says you and your siblings receive equal shares of a property, all of you are entitled to use and enjoy it once you have title to it; however, in most instances, siblings jointly using and enjoying a property is impractical, so another agreement may have to be made about how to divide the inherited property between siblings.
It is important for any beneficiary who is set on taking ownership of a home to consult with a lawyer to learn how best to enforce their right to the property. They should keep in mind that if their desire to remain in the home conflicts with their siblings’ desire to sell the home, a partition action could ultimately lead to a forced sale of the property, although, as previously mentioned, reforms to partition law will make this outcome less likely if the property in question qualifies as heirs’ property.
Another scenario may be that you would like to reside in the home before it is disposed of through the will or trust. This might be possible, but only if fair rental value is paid to the estate or trust.
What happens to property that was co-owned by the decedent or their trust?
Other scenarios in which partition actions are common involve properties the decedent did not fully own at the time of their death (i.e., the decedent had been a co-owner of the property with a third party). It is often illogical for the family members inheriting the decedent’s share of such a property to maintain their ownership.
Take, for example, a decedent who had co-owned a vacation property with a friend. The decedent designated the property to go to their children in their will, but would the children be willing to share the property with the decedent’s friend? They may instead wish to buy out the friend’s interest, or vice versa. If a deal cannot made, and one party refuses to sell the property, it may be necessary to bring a partition lawsuit.
Sometimes the co-owner of a property is a trust. The trustee can also bring a partition lawsuit to try and force the sale of the property. Trusts are likewise entitled to defend partition actions and negotiate buyout agreements.
How do I evict my brother from an inherited property?
If you’re asking how to evict a brother from an inherited property, chances are that he is living in a property you own or co-own without paying rent.
While eviction is always an option, it would be ideal to try to have a discussion with your brother about potentially paying you rent or buying you out of your interest in the property prior to initiating eviction procedures, because not only can these procedures take a long time, but they could create a permanent rift between you and your brother.
If your brother refuses to vacate, and the decedent’s will or trust does not provide him with a right to remain in the property, then the executor or trustee may have to retain legal counsel to formally evict your brother from the property.
Read more about California’s eviction rules.
Are you inheriting a house with siblings? We can help.
Can siblings force the sale of inherited property? How are inherited property splits between siblings carried out? In what way does the executor or trustee decide how to divide inherited property between siblings?
If you’ve just found out that you are inheriting a house with siblings, you probably have a lot of questions about what that will entail. Luckily, our skilled probate lawyers are standing by to answer them. Call us to request a free consultation.
