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If 3 siblings do not agree to appoint sibling that lives in house as the administration of the estate when petition in probate..

San Francisco, CA |

Who will probate assign as administration of estate if family cannot come to an agreement? It appears that 2 or 3 of 4 siblings want to sale and receive their share of inheritance, but the sibling that has lived in the houses for 20 years wants to continue living in household paying only a home equity $11,000 and property tax; no mortgage; therefore equity in property @$300,000 or more. Sibling living in house probably cannot qualify to refinance to buy out other siblings. Can he be forced if majority want to sale? There was no will or living trust.

Attorney Answers 3

Posted

I will assume that a parent of the 4 siblings has died. Since there was no will or trust, any of the 4 siblings has the right to appointment as administrator. Once appointed, the administrator will have the power to sell the home to anyone, including to one or more of the siblings. If the home is to be sold to a non-sibling, the person living in the home will have to leave. Most of the time this can be done gently and thoughtfully so that the person leaves without a fuss. On occasion, however, evictions are necessary.

You will almost certainly need an experienced probate attorney to guide you through this minefield.

My firm has dealt with these situations several times, including in San Francisco. Please call for a free consultation.

Regards,

--Ed

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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Posted

I am very sorry for your loss. The question reads as though your surviving parent died without a will leaving 4 children. First, each of the 4 siblings have equal priority to petition to be the administrator of the estate. Hopefully, the 4 siblings can agree as to who the administrator will be. If not, then significant cost could be wasted in trying to determine who should fill that role. The question appears to focus on the disposition of the home. If all of the siblings do not agree to hold the property for investment, the administrator will have to sell the property and divide the net estate between the siblings. The administrator has a duty to obtain the fair rental value of the property if the property is to be rented. The administrator absolutely can force the removal of the sibling living in the property to permit the sale or if necessary to obtain the fair rental value of the property. Any one of the siblings should have an easier time purchasing the property as he or she is indirectly a 25% owner already. Extreme care should be taken in documenting that to try to preserve the parent child exemption for property taxes. If a sibling is viewed as buying the property from the estate, then the county will seek to treat that as a change of ownership for property tax purposes resulting in higher property taxes. If you are able to document or structure the transaction so that the sibling keeping the property is inheriting and not buying, you may then keep the lower property tax bas value that your parent(s) enjoyed. Once again, I am sorry for your loss.

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James P. Frederick

James P. Frederick

Posted

Very well stated, John!

Posted

This is a common scenario.

Generally, any person with priority ( and here all siblings would have equal priority) can petition to become the administrator. If there is more than one claimant, the court will usually appoint the most qualified or impartial. Or, the court may appoint a professional fiduciary to act as executor. There are many trustworthy professional fiduciaries who will take on the task of administering the estate in return for the for the administrator's fee. One option is to have the siblings agree on the appointment of a particular professional to serve impartially in that role.

Regarding the house, if the siblings cannot agree to a disposition of the property, the executor can attempt to force the sale of the home, or can distribute the home in equal shares to the siblings as tenants in common. Normally, then, the sibling living in the home could be asked to pay rent to the remaining siblings for the right to solely use the home, etc.

If none of this works, than any one of the siblings could bring suit to sell the home and partition the proceeds.

I recommend consulting with an experienced probate attorney in your area regarding the best way to proceed.

DISCLAIMER: THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE. IT IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS RESPONSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU SHOULD CONSULT WITH A QUALIFIED ATTORNEY FOR SPECIFIC LEGAL ADVICE ABOUT YOUR PARTICULAR SITUATION.

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