Partition In Probate: What Is It And Will It Affect You?
Let’s imagine that you have a home, and that in your estate documents, you are going to leave that home to your adult kids. Of course, you don’t want to favor one child over another, so you leave the home to all the kids, jointly.
When you pass, all the kids are equal co-owners of the property. But that can create a potential problem: Your kids may not want to live together. One may want to live in the home or keep it as an investment, while the other child, in need of cash, and not needing a home, may want to immediately sell the property.
Asking for Partition
The co-owners will, in most cases, ask the court to partition the home because there is no other way to divide a home, or share it. A partition is a forced sale of the home; the parties will have to list the home, under the courts supervision. The court will approve of the listing or sale price, or other decisions about the home.
When the home is sold, the profits will be divided equally amongst the owners (or in accordance with the will, if the will says that the kids will not be equal co-owners).
The Problem with Partition
If one co-owner child just wanted the cash from the sale of the home, a partition action isn’t a problem: the house is being sold, and the co-owner will get paid.
But if one co-owning child wanted to keep the property or live in it, that child would have to challenge the partition action in court. That isn’t easy; both kids are equal owners and thus, the court will almost always sell the property, if the children can’t decide what to do with it.
Negotiating a Settlement
If a child does want to keep the property, that child may need to negotiate a buyout of the other child’s interest. That may necessitate the buyer (the child staying in the home) getting financing to pay the other child’s interest in the property. It may be possible to negotiate a settlement that allows payouts over time.
While this can allow both sides to “win,” as one child keeps the property, and the other child gets paid his or her interest in the property, it can put two siblings in an uncomfortable creditor-debtor relationship.
Additionally, the buyout amount is the buyout amount—the child getting the money will get no more money later on from the home, and the child keeping the property is then free, after the buyout, to sell the property at any price, and keep all the profits.
Getting the Best Result
If you cannot stop the partition in court, or come to a negotiated settlement, your probate attorney may be able to at least negotiate for you to get the maximum amount from the sale of the home. That may include reimbursement for any expenses that one child may have put towards the home, for repairs, maintenance and other expenses.
We can help you with any problems that may end up in probate court. Call the Torrance will and estate attorneys at Samuel Ford Law today.
Source:
floridabar.org/the-florida-bar-journal/the-uniform-partition-of-heirs-property-act-a-solution-in-search-of-a-problem/
