What can I do to get my brother to sell my late mother’s house and give me my share of the proceeds?

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What can I do to get my brother to sell my late mother’s house and give me my share of the proceeds?

My mom let my brother borrow against her house 29 years ago; she put his name on the title along with hers. Mom passed 2 years ago and before her death she verbally told him that the proceeds from the sale of the house were to be split evenly between he and I. He owes approximately $100K on the house from the refinance. Now he refuses to sell the house so it’s just sitting there empty. There was no Will but I have an email from him stating the house proceeds were to be split. I actually had no idea. We could use the money for college tuition but the house needs to be sold.

Asked on June 5, 2014 under Estate Planning, Kansas

Answers:

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

Answered 6 years ago | Contributor

You may have some rights here. It depends on just how title to the house was held. If it listed your mother and brother as "joint tenants with rights of survivorship", then upon her death he became the sole owner of the house. However, if such a designation was not made, then legally it is assumed that ownership was held as "tenants in common" (no specifc wording is needed for this; it is impled by law). In the latter event, your brother retains his 50% share but both you and he have rights to your late mother's 50% (i.e.in total he would get 75% and you would get 25%). Of course, the refinanced amount needs to be factored in. As to your mother's written wishes, legally they do not control although morally your brother could decide to do the right thing so that you would end up with 50% rather then 25% ownership of the house.

If you are indeed entitled to a share in the house (again the wording of the title will control), you can then force a sale of the house via something known as "partition"; this is the remedy employed when co-owners cannot agree as to the disposition of jointly held property. In such an action the court can order either that the property be divided (if practical) or sold, with the proceeds to be equitably divided. The sale would be for fair market value but before the property would be offered to outside 3rd parties, any co-owner who wanted to keep the assest could first agree to buy the other owner out (again at fair market value).

At this point, you may want to consult with a real estate attorney in your area for further information.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

If your brother was a joint owner of the home (his name was on the title with your mother), then you can't force him to do anything with it: now that mother has passed, it is *his* house, and as the sole surviving owner, it belongs entirely to him. Moreover, her verbal or oral wishes are irrelevant, unfortunately: an oral or verbal "will," or instructions on what to do with property after someone passes away, have no legal affect (wills must be written to be valid). It appears from what you write that the house belongs to your broher.


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