Creating an estate plan before your death will keep your children from having to fight over the division of assets, including real estate property like your family home.
During the probate of an individual’s estate, there are often warring aftermaths by his or her heirs over the remaining assets. One of the most common family disputes involves the division of real estate property such as the family home.
When siblings inherit real estate together it is not uncommon for them to disagree about what to do with the inherited property once the probate is discharged. One sibling may move into the home or may already be living in it with his or her family, unwilling to move out even at the wishes of the others who hold interest in the property. A common argument in this scenario is, “It is the home we all grew up in, and I am not going to allow my siblings to simply sell it.”
While a probate discharge may have granted all of the deceased person’s children with an equal share of the family home, it does not give any of them special privilege to reside in the home without an agreement signed by the other children who hold ownership interests. If the child living in the home fails to move out, thereby disrupting the ability to sell the property and preventing a division of the assets among all of the children, there are legal actions that the other children can take.
One such action is to file a lawsuit to force a partition of the family home, which is now co-owned by the deceased person’s children. When someone co-owns a piece of real estate property in Florida, he or she has an absolute right to seek legal action to force a partition. Under Florida statutes, an action for partition can result in two types of property division: in-kind partition and by-sale partition.
Like pieces to a puzzle, in-kind partitions physically divide the property among its owners. If it is not practical to divide the property by carving out a usable portion for each owner, Florida partition sale laws allow the property to be sold at auction. The proceeds from the Florida real estate partition by sale will then be divided among the parties according to percentage of ownership.
Partitions by sale are the most common type of partition because it is extremely difficult to split up most properties such as a home or business office building. Partitions in kind are usually reserved for large tracts of vacant land, where the land can easily be divided into separate parcels.
Don’t force your children to squabble over real estate that you intend for them to share following your death. Work with an attorney who specializes in estate planning before your death to determine how to best divide your family home and other assets.