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Dear Quentin,
My dad passed away and left his home to his three children. In his will he states that one sibling — that’s me — can continue to live in the home, rent-free, until the home is sold and the proceeds are split three ways.
Since then, two siblings have passed away while the other sibling (me) is still living in the home, rent-free and paying all yearly taxes, bills etc.
My deceased brother’s spouse had her name added to the deed of the home in place of her husband’s name. Now, she wants me to either buy out her share of the home, or sell the home so she can get her share.
I have not yet responded to her attorney’s letter, and would really like your opinion. I’m still living in the family home, rent-free as per my dad’s will. I have no intention of selling the home, especially since I’m living in it and maintaining it. Nor do I have the money to buy out her share.
Can she force me to sell my home?
Son and Brother (and Brother-in-Law)
Dear Son/Brother,
The answer depends on the kind of ownership you shared with your siblings and/or your sister-in-law.
Firstly, I wonder how your sister-in-law’s name came to be on the deed. If your brother died after your father, would she have needed your permission to be added? (I assume that you would not have allowed that.) Did your brother predecease your father — and did your father divide the ownership of the home between you, your sibling and your sister-in-law? Or did your brother’s share go to his wife upon his death?
Here’s a rundown of the kinds of ownership that exist for multiple parties: If you were “tenants in common” your brother could have left his share to a third party. If you own the property as “joint tenants,” you and your two siblings each own 50% and, should one of you die, you cannot leave your half to a third party. Either way, I will answer your question at face value, assuming that she is indeed on the deed.
A life estate is a formal agreement that would allow you to remain there for the rest of your life. Doing this would, in theory, protect your estate from Medicaid liens, for example, and ensure that the home is kept in the family. More importantly, it would also prevent the home from being sold from underneath your feet. A real-estate trust would also protect the property being sold, and similarly keep it in the family.
One of the big benefits of transferring real estate is that the real estate is owned by the trust, not you, according to Santaella Real Estate. “Because of this, it is not considered part of your estate, and, consequently, is not subject to probate. Although any debt associated with the real estate still must be paid, it makes the process quicker and less expensive outside the probate process”
The answer lies not with your sister-in-law’s wishes — at least, not immediately — but with the terms of the deed on your late father’s home, or trust, if one exists. If she does have the legal right to sell, an attorney could issue a partition action for the probate court to force the sale of your father’s property.
The property taxes, in the meantime, should be paid from your father’s estate and/or by all of those who are listed on the deed.
Bottom line: If you have a life estate, you are protected. If this rent-free arrangement is a casual one, you may be out of luck.
‘The answer lies not with your sister-in-law’s wishes — at least, not immediately — but with the terms of the deed on your late father’s home, or trust, if one exists.’
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