Attorney Thomas B. Burton answers discusses the real question regarding houses, real estate and probate: "Mother Died with No Will. One Kid Wants to Sell House and Two Do Not- What to Do?" Attorney Burton analyzes this real reader question under Wisconsin law and provides several options to the questioner of ways to deal with this tricky situation with their siblings short of going to court to litigate this issue. Attorney Burton also discusses the litigation option that the reader could pursue if all other options fail to settle the dispute. Attorney Burton also discusses the real psychological and emotional toll that litigation can have on members of the family in complicated probate situations like this.
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Welcome back to my Real Attorney Reacts Series!
This series is where I take a real estate planning question, that's been asked and I analyze it under Wisconsin law.
I'm Attorney Thomas Burton and I'm in estate planning and asset protection attorney here in Wisconsin and today's question is another one that was submitted to The Moneyist column and I just saw it in my newsfeed recently and I thought it would be a great illustration for our viewers.
So let's get right into it. Here's the question and The Moneyist column is the smart market watch columnist, I should make clear, who writes for marketwatch.com. They're not a lawyer, it's like a personal finance column but often you'll see estate planning type issues and probate pop up. So here's the question - "My mother left a home in Savannah, Georgia on five acres, I want to sell. My brother threatened to sue me for harassment and quote 'Ruin me'." And I'll read parts of the question that jumped out at me here, not the whole thing. "In September, our mom died without a will in Chatham County, Georgia. I do not want to own her house and five acres in the country in Savannah but my two siblings refused to sell it and split the estate. I live in Indiana."
So first thing here, we're dealing with, you know, one siblings in Indiana, this real estate is in another property and she mentioned her mother died without a will and we call that Dying Intestate meaning no will written about what the mother wanted to happen. Then the questioner says, "My brother threatened to ruin me when I told him that he and our sister could either buy the property or it would be sold. He is carrying on about how his kids were raised there by our mother, although she", oh that part cut off with an ad "although something something", I think it said something about the kids weren't raised there. "He is blind and likes to winter in the house rather than stay in his own apartment. He lives in a major metropolitan area where he has to navigate public transport. He is living there now without a lease or even his name on the deed."
So it sounds like the one brother would go stay at the mother's house and he's there right now. Mother died in September, a couple months ago, "My sister also does not want to sell the property because it has been in the family for 90 years" which is you know quite a long time almost 100 years.
Now, "They say I filed to be named personal representative with a Savannah law firm." That's what they call The Executor in Georgia, we also call it Personal Representative here in Wisconsin, that would be someone to be in charge of the estate and if there's no will that means the person didn't name who should be personal representative. So essentially, anyone interested in the estate, in Wisconsin, could file to become personal representative. For sure, one of the three children, the heirs here, they could all file to be named as personal representative and since the mom didn't choose one, it could be a fight over who will serve and remember in Wisconsin, the personal representative makes the decisions about managing the estate, managing the assets, selling them, distributing the proceeds and they also receive 2% of the estate as a fee for their services. So I don't know the motivations here, sounds like the one writing wants to be in charge but there could be other motivations as well.
"My mom's car's in the garage on the property unless my siblings sold it or gave it away. They stayed at the house during the funeral and I did not attend. Who knows what they have done with her paperwork" and then it says, "All communication has stopped between us due to their screaming at me down the phone." So unfortunately, that sounds like a very difficult situation, if they've gotten to this point of screaming at each other.
So she asked the columnist, "Is there anything more" she or he or did say my brother I forget, anyway, "Was there anything more I can do to protect the estate as I wait for the probate court to serve my siblings and name one of us as administrator? I contacted my mom's bank to let them know about the situation. I told her insurance companies too. I cancelled cable tv and my brother threatened to sue me for harassment although he is capable of putting this bill into his name. I appreciate any help you can give me. The paralegal said the more questions I ask, the higher my bill. Waiting for my and their next move." is how this letter is signed.
So then The Moneyist column, the way this works, they react. So I'm providing you, I'll give you some of their advice but I'm also trying to tell you how this would play out under Wisconsin law, in probate court. Now one thing I'll note about their question there is the part about the communication breakdown, you can clearly see how someone passing away without a will can quickly turn into an ugly situation and it could be this family had issues before the mother passed away but certainly dying without the will hasn't made it any better and it does sound like the one brother is quite litigious or likes to threaten lawsuits about the restraining order or the lawsuit harassment things like that.
So here's what The Moneyist columnist said, "You can take a partition action to force your siblings to sell their share. The court will agree if there is a strong reason to sell. In reality, it would be difficult to prevent such an action but not impossible. This could be an expensive and bitter legal challenge, if you're worried about your bill going up because of questions you ask your paralegal, wait until you get to court."
So I think that's very good advice to start off with. If they're worried about the bill with the law firm now and that's why they're writing to The Moneyist column, a petition action is an actual litigation action in court where one property owner would try to go to the judge and say, listen judge, I want to sell, the other two do not and for real estate, the judge will look at the situation and if they cannot reach an agreement, the answer is to sell the property and divide it amongst the co-owners. So it's the ultimate, partition action is sort of the ultimate play if you will, when you reach disagreement amongst joint property owners and this is the reason why I don't recommend owning property jointly with other people, other than perhaps your spouse but it can often lead to disagreements and then one person even if they have a small interest, they can petition for this partition action. A better way, if you're going to hold jointly on property is through a trust or a business entity like an LLC, with the rules laid out clearly, protecting minority and majority owner interest.
Now The Moneyist column suggest this but in my opinion, he skipped ahead a little bit because I think before you could get to that partition, you're gonna have to get the probate open because in reality, the house is still owned by the mother. If she died without a will and the house was owned by her, in her name, you have to get title transferred before this one sibling could petition for partition. So until the probate is completed, that's where the personal representative would manage and distribute the real estate and so, he brings up the partition action, it's a good point but I would say, they would probably need to pursue the partition through the probate court process. What I'm saying is, if there's this big disagreement now and one of the three heirs, one wants to sell, two don't. I would bring that up right during the probate and let the judge decide instead of letting the probate end and then doing a separate partition action later. So you could probably try to make it part of the probate. If you already know you're all dead set on this or you have to wait till the probate gets concluded and you get your one-third interest in the property to bring your partition action but I'm just saying if you're concerned about legal fees, you want to, if you have a lawyer, you want to talk with the lawyer and make them aware that this is what you want from the get-go. Now The Moneyist column says, "It's obviously unfortunate that your mother did not leave a will" and I would say yes, that's an understatement in this situation. "She may have chosen to put this family property in a trust and or she could have left it to your siblings, assuming she was aware that you wanted to sell it. Was she aware?" The Moneyist columnist asked. "How would she feel about selling this family property that has been in the family for almost a century two months after her death?" and you know, he has a good point there and I would say that first suggestion, she could have put it in a trust is really what I would have suggested if I could have met with this mother and she should have, if she knew her siblings didn't get along, in my opinion, she should have laid out very clearly what happened to the real estate and I often caution clients about this with real estate, if not all of the children want the real estate or view it the same way, you know, this idea about the family home being in the family for almost a 100 years, then what I would have tried to do, I don't know her estate in total but what I would have tried to do is say, okay two of them want to keep this real estate. So let's put the real estate in the trust and make two of them the beneficiaries of that and then figure out a way that this third one gets a third of the estate in cash, insurance or other assets. That's if you have enough assets to do it that way but then it would have been cleanly laid out the house goes to these two kids who want to keep it and we have an insurance policy over here that pays the child in Indiana the one-third because we know they don't want to keep it and that avoids her becoming a property owner of the family home and possibly doing this partition action to sell it or the mother might have known the third child was going to be difficult and they, she could decide I want this home kept in the family. I don't want to leave any interest to this child in Indiana. at all, if you know, because I don't want the possibility that it could get sold but you could lay that all out inside the trust document and that's what I would recommend.
Okay, so The Moneyist columnist says, "Two people want to keep this house in the family and for their use plus your brother clearly enjoys spending time there away from the city. I suggest you take all this into account when making your decision. Your letter says a lot about what you want but there are three people in this financial arrangement and you are changing the status quo by insisting on selling up. I don't know why you did not attend your mother's funeral, perhaps it was due to the animosity between you and your brother and sister or maybe your relationship with your mother was fractured too. Grief can rattle people to their core and unearth long buried feelings of hurt and resentment and make us act in ways that we would regret afterwards or maybe the pandemic made travel to Georgia impactable. I urge you to think of the importance of this property in your family's history and how it could be enjoyed by future generations. You could agree to sell a part of the land, for example, and your siblings could then use their share to pay you off for the house. Selling this house against their will may be the final act of this relationship but it would be a messy and ugly one."
So I think he really hit on a key point there. There's the legal side of this and then there's the psychology of human relationships and if this one child chooses to go to war, I mean that's a choice they have to make because it may be something you never get beyond. I like to suggestion that maybe with the five acres, they could sell part of the land. You could partition the house, let's say, on one acre and sell four acres, if that's possible. I don't know if the four acres would bring enough cash to buy out that third child but it's similar to my idea, the child mentions bank accounts and life insurance. So what I would do is look at the other assets and come up with the total value, the value of the house plus real estate plus financial and insurance and if there's any way to do it, what you could do is just have the one child in Indiana take cash and in the amount equal to one third of the total, let's say, it's a $100,000 and the two other kids keep the house worth $200,000 and they take over the property maintenance and upkeep. That to me is the best solution in this situation. If you can do that with enough other cash assets and get the child, who wants out of the house, out of the house now, because if they all remain as co-owners, this is not going to be an issue that goes away. You can see the one in Indiana, already cut off the cable for the the son, who's there during the winter and so you know, you can just see there's gonna be fights about the cable bill and upkeep and maintenance and things like that, so I suggest the Indiana child get out, never become a property owner of their possible third in this property.
So the columnist says, "Cutting off the cable without warning was regrettable. Two months after your mother's death, the best way to leave this relationship is by setting example of how you wish to be treated, how you like to treat others" and that's a very good advice. The golden rule, do unto others as you would have them do unto you. "Ask yourself, if I were to remove all negative feelings justifiable or not from this situation, what would the best version of me do and do that".
So here I feel The Moneyist columnist is almost giving a biblical advice which is quite good. Helping this person step back and think about this situation from a bigger viewpoint.
So he ends with this, "You won't erase the past or this house from your mind by forcing your siblings to sell your family's home, nor will it make your hurt or resentment go away. You will walk away with an equal share but the moral and emotional consequences of a partition action will be your burden to bear. It would be a pyrrhic victory, the ashes from which would follow you for years to come." So he ends on a beautiful piece of writing there. I must commend his ability with the pen but overall I feel his message is sound, cautioning the sibling against thinking about what they really want to happen out of this because litigation, sometimes people will ask can I sue over this blah blah blah, the answer often is yes, there is a legal remedy but is the legal remedy what you actually seek and what will it do to you emotionally. Abraham Lincoln, when he was a lawyer said, "Caution your clients to avoid litigation whenever possible" because he saw the tremendous emotional and psychological toll litigation can have on people, not just the monetary costs. So I often suggest this in my practice, if there's a way to come to a solution without going to litigation, you're often going to be, especially when dealing with family members, it's often going to be a good solution. It doesn't mean you never pursue litigation but you want to, in my opinion, don't jump at it.
Now in terms of the house like I said, the best thing would have been if the mother could have made a trust and just knew this one child was not interested in the house, left them out of the house completely. We put the house over here, goes to these two kids, one third division of the other assets to this child or if she didn't have enough other assets but it's important to keep the home in the family, you just leave the house to the two children who will keep it in the family or even better leave the house in a trust for the benefit of the two children, who want it with some money in there to pay for upkeep at least for a while and then those children, long term would have to agree to take over those maintenance costs because with real estate, the issue with leaving it to people is there is ongoing cost. Taxes, maintenance, upkeep, electricity and sometimes, people like to use a home when someone else pays all those expenses but if they have to pay them, that's when the rubber meets the road and they really decide, is something I want to do long term, use my money to pay for the upkeep of this real estate especially, if it's a second home.
So this is a regrettable situation but it's one I see actually coming up more often especially with real estate and I wanted to discuss it today on my Real Attorney Reacts Series.
So I plan to make this a new series in the coming months when I see an article, a question like this, that grabs the attention and I feel could be illustrative to viewers, across the country and then also provide some analysis under Wisconsin law here, where I'm licensed. If you enjoyed this, let me know in the comments, if you have a question you want me to cover in this series, for me, you can submit it in the comments as well or submit it anonymously to the office, for consideration. We'll look at getting to it in a future episode.
Thanks for watching and we'll see you next time.
© 2021 Burton Law LLC. All Rights Reserved. Transcript and captions provided for ease of access for the hearing impaired. For questions about this topic, or to suggest a topic for a future blog post, please contact the office.
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