If my mom’s Will states that her house is to be sold and the proceeds split money evenly between the 5 of her children, can we sell the house even if one brother wants to live there and not pay the rest of us anything?
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If my mom’s Will states that her house is to be sold and the proceeds split money evenly between the 5 of her children, can we sell the house even if one brother wants to live there and not pay the rest of us anything?
Can we sell it anyway if he doesn’t agree?
Asked on October 8, 2019 under Estate Planning, Oregon
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
1) If the will directs that the house is to be sold, that's what the estate's executor or personal representative must do: he or she is bound to follow the directions of the will, and the wishes of one of the heirs or beneficiaries do not overrule that.
2) Even if the will did not specifically direct that the home be sold, once it was inherited by the siblings, the ones who want to sell could go to court in a kind of legal action or lawsuit called "an action for partition" to get a court order that the home be sold and the proceeds distributed: when the co- or joint owners of real estate disagree as to what to do with it, the law lets them force the sale, split the money, and go their separate ways.
What you describe in your question is situation 1, so it's clear that the house not only can but must be sold, to follow the will. To facilitate the sale, the executor or personal representative can bring a kind of legal action called an action "for ejectment" to remove the brother from it--think of "ejectment" as eviction for non-tenants. Someone who is not a rent paying tenant under a currently valid lease has no right to reside in property he does not own. Because the executor is not the home's actual owner (the estate is), he or she will have to hire an attorney to bring an legal actions for him or her (only the property's owner can represent him- or herself in court, though hiring a lawyer would still be a good idea).
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