Q: Our mother recently passed away in Florida. I live in another state, so the last year before she died, my brother moved in with her to be able to help. The house was owned for decades by both our parents, and our father passed away some time ago. My sister and I want to sell the house, but our brother wants to keep living there. We get along well enough, but are at a deadlock on this issue. Our mother did not have a will. What will happen to the house? — Ralph
A: After a person passes away, the legal process known as “probate” comes into play. This court-managed process involves gathering and distributing the deceased’s assets, including their home.
When an individual passes away with a will, their probate process is termed “testate,” with the will serving as guidance for the distribution of their assets.
Conversely, if no valid will exists, the estate is considered “intestate,” and the law offers standard instructions for distribution.
Determining heirs can sometimes be complicated, but typically, the spouse inherits first, followed by children, and then grandchildren. If none of these relatives are available to inherit, the decedent’s parents are next in line, then siblings, and so on, according to a statutory order.
Florida and several other states have special rules dealing with the inheritance of someone’s primary residence, known as their “homestead.” Because she was a widow when she died, ownership of her home passed to you and your siblings.
You will need to take some steps to deal with your situation.
First, you need to hire an attorney to help you probate your mother’s estate. Her financial situation will determine how complex or straightforward this process is, but in the end, you and your siblings should end up equal owners of her home.
The three of you should work together to either allow your brother to buy out his two siblings’ share of the property or sell the property and split the proceeds.
However, if you cannot work together to complete this, you can petition the court to step in and force the buy-out or sale in a “partition” lawsuit.
Board-certified real estate lawyer Gary Singer writes about industry legal matters and the housing market. To ask him a question, email him at gary@garysingerlaw.com, or go to SunSentinel.com/askpro.