During probate of a decedent's estate, there are often warring aftermaths by the heirs over the assets remaining. One such aftermath frequently involves real estate property such as the family home. It is not uncommon that when someone dies and leaves real estate to more than one child, the children cannot agree on what to do with the inherited property once the probate is discharged. One child may move into the home or already be living in it with his or her family and inform other children who hold interests in the property that he or she has no intention of moving out. A common argument is, it is the home we all grew up in and I am not going to allow my siblings to simply sell it.
Because a probate discharge may have granted all of the children an equal share in the family home, it does not give the child living in the home any special privilege of remaining in the home without an agreement with the other children having ownership interests. If the child living in the home fails to move out of the home thereby disrupting the ability to sell it and preventing a division of the assets among all children, there are legal actions the other children can take.
One action that can be taken is to file a lawsuit to force a partition of the family home now co-owned by the decedent's children. When someone co-owns a piece of real property in Florida, he or she has an absolute right to seek legal action to force a partition. Under Florida statutes, an action for partition can result in two types of property division. One type of partition is known as in kind and the other type is known as by sale.
Like pieces to a puzzle, in kind partitions physically divide the property. If it is impracticable to divide the property by carving out a usable portion for each owner, Florida partition sale laws allow the property to be sold at auction. The proceeds from the Florida real estate partition by sale will then be divided between the parties according to the percentage of ownership. Partitions by sale are the most common type of partition because it is extremely difficult to split up most properties such as a home or business office building. Partitions in kind are usually reserved for large tracts of vacant land, where the land can easily be divided into separate parcels.
Don't force your children to squabble over real estate you intend for them to share following your death. Contact Jackson Law at (407) 477-5046 to discuss estate planning and how to best divide the family home and other assets before your death.
