If your adult siblings refuse to leave your deceased parents’ house, there are legal actions you can take. The appropriate course of action for your situation will depend largely on who inherited the home. For instance, if the sibling did not inherit the home, whoever received ownership can pursue an eviction.
However, under Texas law, even if you and your siblings jointly inherited your deceased parents’ home, you may be able to force the sale of the home and have your siblings removed against their will.
Can a Child Live in a Deceased Parent’s House After They Die?
It depends. There are many factors involved in determining whether a child can live in a deceased parent’s house after they die, including the terms of the will or trust, whether your deceased parent’s spouse is still alive, who inherits the house, and the discretion of the personal representative or trustee in charge.
If your deceased parent’s spouse is still alive, there are complicated issues involving community property and/or homestead rights to navigate. In most situations, a surviving spouse will have the right to remain in the home and will maintain at least partial ownership. But if your parent does not have a surviving spouse and multiple siblings inherit a house jointly, each child may have the equal right to use the home.
What Happens When One Sibling is Living in Inherited Property and Refuses To Sell?
There are several options for situations where one sibling is living in inherited property and refuses to sell when the other siblings want to. For instance, the sibling who wants to keep the home can buy out the other siblings’ interest in the property if they have the financial means to do so. If this is not an option, arrangements involving other estate property, renting, or payment plans may be an acceptable alternative.
However, if siblings cannot reach an agreement outside of court, the siblings who want to sell can bring a partition action to force the sale of the home and terminate their co-ownership.
What is a Partition Action?
A partition action is a legal proceeding where a judge divides property into two or more parcels.
Under Texas Property Code § 23.001 and Chapter 23A, a joint owner of real property can file a petition to force the creation of separate and distinct parcels from a single property (“partition in kind”). If the property cannot be equitably divided among the owners, then the joint owner can force the sale of the property. This is known as a “partition by sale.”
Any co-owner of property has an absolute right to partition under Texas Property Code Chapter 23. Texas law favors partition in kind, and the court will split the property instead of forcing a sale when possible. However, many family homes are not susceptible to equitable division. Additionally, if dividing the property would create a substantial decrease in value, the court will typically order a partition by sale.
Generally, if the court orders a partition by sale, the property will be sold at a public auction. However, if the real estate is “heirs’ property,” the special rules in Texas Property Code Chapter 23A apply. Under these rules, heirs are permitted to buy out the interest of the co-owner who is attempting to force the sale, and if a sale is ordered, the property must be listed with a real estate broker for its fair market value instead of going to auction.
A family home inherited by siblings will almost always be considered heirs’ property unless there is an agreement in the real property records governing partition.
When Should I Contact a Probate Litigation Lawyer?
If you have inherited a family home with a sibling who does not want to sell, you should contact a probate litigation lawyer as soon as it becomes clear that you will not be able to reach an agreement on your own.
An experienced attorney can help you negotiate with your sibling to avoid a partition action resulting in the home’s sale. People often do not understand that co-owners of property have an absolute right to partition, and this information may help persuade your sibling to compromise. However, if you still cannot come to an agreement, your lawyer can file a partition action on your behalf to force the division or sale of the property.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.