Real estate passed on from one generation to the next is one of the primary ways wealth is built in this country. Siblings who jointly inherit a home or other California real estate assets from a deceased parent can sell the property and the proceeds.
However, the common transfer of wealth through inheritance can be complicated if one sibling continues living in the deceased parent’s house and interferes with the inheritance rights of the other siblings. This type of sibling conflict comes up a lot as a matter of fact. Unless there is a will or trust that specifically says the one sibling will inherit the home or retain a right to live there, the other siblings may pursue legal action to exercise their rights to the home as part of their inheritance.
A knowledgeable probate litigation attorney at Albertson & Davidson can help if you have concerns about a recently deceased loved one’s estate, will, or trust. Our attorneys focus on handling complex estate and inheritance litigation matters involving probate and the transfer of assets. If your inheritance is at risk, the guidance of an attorney experienced with California probate law and estate litigation can help you protect your rights and your inheritance.
Our attorneys at Albertson & Davidson assist clients throughout California from offices in Los Angeles, Bay Area, San Diego County, Orange County, and Silicon Valley. Contact us today at (855) 928-0542 or online for a free and confidential consultation.
Inheritance Rights of Siblings After Parents’ Death
When a parent’s will or trust specifies that ownership of real property will be transferred to a named child upon the surviving parent’s death, that child will assume outright ownership of the property in most cases. For example, if a parent names one adult child as a joint tenant on a house, the surviving joint tenant is assumed to be the sole owner of the house when the parent dies.
When there are multiple children, a will or trust typically passes equal ownership of real estate to each sibling.
Most trusts do not say that one sibling can live in the parent’s home for a certain period of time. But it depends on the terms of the trust or will.
If there is no will or trust or the court considers the will or trust to be invalid, the estate is intestate and enters probate. This is a legal process in which the court decides how assets from the estate will be distributed.
In California, inheritance laws specify the order in which survivors of the deceased assume rights to the assets of an intestate estate. Children of the deceased assume inheritance rights if the deceased’s spouse is not alive.
When a large asset, such as the family home, is passed on to the children of the deceased in equal shares, they may either:
- Sell the property and split the proceeds
- Proceed with joint ownership
- Allow one or more of the siblings to buy the others’ shares and assume ownership.
Siblings who can come to an agreement are free to make any private arrangement they want for the disposition of a home they inherit equally. In many cases, because each sibling has lived away from home, the children of the deceased find it easier to sell their parents’ property and divide the proceeds.
Joint ownership of real estate among several siblings is more feasible when, for example, the inheritance is a vacation home and a contract for shared use is drafted. Siblings might rent out a jointly owned piece of property and contract how proceeds and managerial duties will be shared.
A primary residence that is not sold outside of the family might be retained by a single family member who buys it from the others. How payments are to be made is a private matter but should be set forth in a sale contract and notarized.
Partition Actions: When One Sibling Refuses to Sell an Inherited Property
When there is no will or trust directing the disposition of a decedent’s estate, the Probate Court must adhere to California intestate succession laws. Real estate can sometimes be transferred with a transfer-on-death deed.
When the children of a decedent are legally determined to be next in the order of intestate succession (i.e., there is no living spouse), they will inherit the assets in their deceased parent’s estate equally. For example, if there are four surviving siblings, each sibling will inherit 25% of the estate, which would include 25% of a home.
It is not unusual for four adults to disagree about what should be done with an inherited family home, especially if there is no will.
If one sibling continues living in the deceased parents’ house and refuses to move out, your best option may be to go to court and file a petition for probate and have the court appoint you as trustee of the estate. Hopefully, you can get custody of the house and then seek a court order to get your sibling out of the house, sell the house, and split the proceeds.
Any co-owner of the house can force the sale of inherited real or personal property by initiating a court-ordered division of the property known as a partition action. Once a partition action is approved by the court, a partition referee is appointed to sell the property so the proceeds of the sale may be divided. A partition referee has wide authority to act to get the house sold, including changing the locks on uncooperative co-owners and/or occupants.
California courts have established that the right to partition is absolute, and consent by co-owners is not required unless an enforceable agreement exists. For example, certain titles to properties are binding and could prohibit a partition lawsuit.
Sometimes a piece of real estate is partly owned by a trust and children of the decedent. A trustee or beneficiary of a trust would also be able to bring a partition lawsuit to force the sale of the property.
Because ownership is required, a beneficiary of the decedent’s estate cannot bring a partition action until the executor of the estate or trustee has transferred the title to the heirs. In some cases, an executor may purposely move slowly on transferring a title to delay a forced sale. In such a case, the legal recourse would be to sue to have the executor removed for neglecting his or her duties.
Sometimes the threat of partition and the family property being sold to a third party will prompt a sibling to step up and offer to buy out his or her co-owners. If you are only interested in a fair share of your inheritance, this is a faster and easier resolution to your problem.
Help Filing a Partition Action in California
Initiating a partition action in California requires filing a petition for partition action in the county where the property is located. Once the complaint is filed, the County Recorder’s Office files a notice of pendency of action, notifying anyone interested in the property that the complaint exists so they may respond.
When the case comes before the court, the judge may uphold the partition request. This leads to the court appointing a partition referee whose duty is to divide or sell the property.
A partition action regarding inherited property may be stopped if an objecting party can show:
- The petitioner waived their rights to the property, which would require a contract of some kind, or
- The costs of necessary repairs, improvements, taxes, payments of principal and interest on mortgages, and insurance exceed the petitioner’s equity in the property.
When siblings don’t agree on how to divide inherited real estate, it is best to speak to an estate litigation attorney to help you explore possibilities for settling the dispute or navigating the legal process in California.
Our attorneys at Albertson & Davidson can review your parent’s will or trust documents, property deed, and other evidence to evaluate your claim and then discuss the appropriate steps to take. Pursuing a partition action can be a time-consuming process, but sometimes, a legal claim is your best option for standing up for your rights and protecting your inheritance.
Contact Our Trusted California Partition Action Attorneys
California’s laws governing a partition action clearly favor the rights of any legal owner to sell their interest in inherited property. However, technicalities of ownership can complicate a sale. Having an experienced attorney represent you is crucial.
Our founding attorneys Stewart Albertson and Keith Davidson at Albertson & Davidson LLP are trial lawyers who focus on inheritance litigation. We stand. We fight. We win.
Our law firm has offices in San Diego, Carlsbad, Bay Area, Irvine, and Los Angeles. Contact us online or at (877) 637-7234 for a free initial consultation.
