If a parent dies without a Will, who is entitled to their estate?

My father died 2006 and left a house. Now my brother claims that my dad left it for him and he wants to sell it.  What can I do?

Asked on March 7, 2011 under Estate Planning, South Carolina

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

First of all, if someone dies without a Will they die "intestate".  This means that state law will control the distribution of their estate.  Typically it is split among the surviving spouse, if any, and the children of the deceased.  Since no mention is made of a wife I will assume that your father's legal heirs are just you and your brother.  In such a case you would each be entitled to 1/2 of his estate.

As for the sale of the house, since you both own it, you would both have to sign off on any sale.  Yet even if you don't want to sell, your brother can go to court a file an action for "partition".  This is a legal remedy that allows for the division of property when 2 co-owners can't agree on ownership matters (such as whether or nota property should be sold).  If the property can be divided, it will be.  However, in a case such as this (a single family residence) since physical division is impractical, the court will order that the property be sold.  Although, it will first give the option of allowing 1 party to buy out the other at fair market value.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

First of all, if someone dies without a Will they die "intestate".  This means that state law will control the distribution of their estate.  Typically it is split among the surviving spouse, if any, and the children of the deceased.  Since no mention is made of a wife I will assume that your father's legal heirs are just you and your brother.  In such a case you would each be entitled to 1/2 of his estate.

As for the sale of the house, since you both own it, you would both have to sign off on any sale.  Yet even if you don't want to sell, your brother can go to court a file an action for "partition".  This is a legal remedy that allows for the division of property when 2 co-owners can't agree on ownership matters (such as whether or nota property should be sold).  If the property can be divided, it will be.  However, in a case such as this (a single family residence) since physical division is impractical, the court will order that the property be sold.  Although, it will first give the option of allowing 1 party to buy out the other at fair market value.


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