Several times a year, I am consulted by anguished siblings whose parent has passed away intestate leaving only their residence and no other material assets. Very often this situation is complicated by a brother or sister who has stayed in the house with mom or dad and now refuses to leave what has always been their home.
In New York, ownership of the residence devolves by operation of law to the surviving children in equal shares at the instant of their parent’s death. Each owns an undivided share of the real estate with no further action needed to bring this about.
It is always possible for one of the siblings to apply to be the administrator of the estate but this has definite drawbacks, if only because of the cost of the administration proceeding, the possibility of having to pay for a surety bond (likely if there is disagreement on the house, no matter how irrational) and the risks that becoming a fiduciary always entail. A better approach is proceed by partition and sale.
Partition and sale is a remedy available to any owner of a portion of a parcel of real estate. Upon application to the court, it must invariably be granted since it would not be appropriate to require an owner to forego receiving the value of his or her share of the property indefinitely until everybody is ready to sell. The action also serves as a way of obtaining a judicial accounting of each party’s interest in the property as well as what any party might owe the others for fair market use and occupancy or the cost of maintenance or structural repairs.
When a court orders the partition and sale of a parcel of real estate, it does so by appointing a referrer to sell the property at a public, advertised auction. Only the most hard-headed and irrational folks will actually maintain this action past the point where a referee is appointed. The combination of the costs to the parties by the referee and the losses almost always incurred by an auction sale on the courthouse steps should be enough to bring almost everyone to his or her senses so that a more beneficial and cost-effective solution can be agreed upon.
Sometimes, a lawyer’s letter alluding to the the mere threat of an action for partition and sale may be enough to bring about a successful conclusion to the dispute.