Probate Question: his brother wants to sell the house, we dont!

Asked over 1 year ago - Fullerton, CA

My father in law passed away without a will and he has 1 house that's paid off. My husband has just 1 brother, so the house is gonna be split between them 2, but because there is no will, the case is taken to a probate court by his brother. The problem is, his brother wants to sell the house and we don't since we still live in it (his brother is not). The probate lawyer he found who is taking care of the probate case right now saying that we either have to pay his portion out to him or we have to agree to sell the house. What other options do we really have besides these 2 options?
Can we just not agree to sell the house? If yes, what's gonna happen?

Attorney answers (5)

  1. William Martin Burbank

    Contributor Level 12

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    Answered . There are clear advantages of keeping the house, especially for you. But your brother seems to want the cash. Other lawyers have mentioned your legal options, but i want to help you negotiate with your brother. See if you can find out what your brother is planning to do with his half. If it is investing in real estate he can't do better than to keep the house with you as a build in tenant. Any new property is going to have higher property taxes as your parents proposition 13 benefits will pass to you and your brother. If you brother has other plans, paying off debt or buying a new car, etc. Maybe there is a way you can assume that debt or cosign a loan. The point is, to make progress on the negotiation; you need to find out what is really motivating your brother and then you can work on ways to help him reach that goal, other than by selling the house. Good luck.

    Every situation is different, it is important to discuss your legal issue with a knowledgeable attorney in your... more
  2. Michael Robert Weinstein

    Pro

    Contributor Level 14

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    Answered . If Probate has been opened in Superior Court and the two brothers are in disagreement whether to sell or keep the house, then the court will order it sold and the cash divided between the brothers/heirs. However, you can negotiate to rent the house from your brother if he is willing to accept a stream of income rather than an immediate buyout. If he agrees to rent his half to you then he will get his appreciated half when the house is eventually sold. You will have to pay all of the expenses for use of the house such as utilities. However, the taxes may be split and any maintainence or other upkeep may be split. You will have to negotiate this with your brother.

    Nothing contained in the information on this web site is to be considered as the rendering of legal advice for... more
  3. Michael Raymond Daymude

    Pro

    Contributor Level 20

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    Answered . Your options are the ones that have been presented to you. It is understandable that you do not want to sell the house because you are living there rent free.

    However, if your husband does not come to terms with his brother, you can be certain the probate court will impute the reasonable rental value of the house to him during the probate proceedings and those proceedings will further reduce the size of the probate estate.

    It behooves your husband to buy his brother out or agree to sell the house. Good luck.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for... more
  4. Steven M Zelinger

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    Contributor Level 20

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    Answered . If you are not paying rent or a mortgage you are in bonus land...why not buy him out? Perhaps at a discount and perhaps allow him to take a mortgage so you pay him over time just like if you bought the house and obtained a bank mortgage?

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is... more
  5. Mark Aaron Ross

    Contributor Level 5

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    Answered . I agree with the others. Since your husband and his brother are the only beneficiaries, it is somewhat like being tenants in common. Therefore, unless they can come to an agreement on whether to keep or sell the property or have one brother buy out the other, either brother has the absolute right to force a sale of the house and the Orange County probate court will not hesitate to order that the house be listed for sale. On the plus side, if a beneficiary has been living in estate property they are usually granted leeway in continuing to live there rent-free for some reasonable period of time. 1 year is not unforseen and I have seen it last for longer. The best thing to do is to sit down and try to work this out. Since the real estate market is still in flux and a sale can take a while, your husband's brother may be motivated to allow you and your husband to buy him out and get a quick sale rather than listing it on the open market which may take a long time to sell.

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