Should we divide or own the property jointly?

A fellow caregiver asked...

My question has to do with the division of real estate property contained on a will. My mother left a farm to be divided equally between me and my brother. She passed away approximately 15 years ago. The problem is that I would like to divide the property but my brother wants to continue joint ownership. I think it is the fair thing to do for our heirs while we are still around. My brother says he if afraid someone will get hurt if we divide it up. My concern is that someone will get hurt if we wait. I have offered to divide it into two parcels and let him have his choice as to which one he selects. I've also told him that he could make the division and let me have my choice. I don't want to cause hard feeling in the family, but there must be a way I can force the issue. I would appreciate your comments. I do feel that his wife and daughter are playing a big part in his reluctance to dividing the property.

Expert Answer

I don't have sufficient information to give an opinion regarding dividing the farm between you and your brother. You believe that if you don't divide the farm now, someone will get hurt. Your brother believes that if you do divide the farm now, someone will get hurt. I don't know what harm either of you refers to, or why either thinks that might occur.

Also, while I gather that the property is still being actively farmed, I not sure of that. If it is being farmed, would there be any drawbacks to dividing it into two separate parcels?

Finally, what is the significance of your bother's wife and daughter playing a big part in his reluctance to divide the property. Why do they want to keep the property undivided? Why do you think their views are wrong?

I also don't know the legal form of ownership of the farm. It is some type of shared ownership, clearly. I doubt if it is legally in "joint tenancy." In joint tenancy, the surviving owner automatically inherits the interest of the deceased owner. I think you two own the farm as "tenants in common." That means each of you owns an undivided half share of the property, and you can each leave your share to whoever you want.

You could "force the issue" by bringing a lawsuit to legally divide the property. But this would surely cause hard feelings in the family. A less conflictual approach is to ask your brother to agree to mediation of this issue. Mediation is an informal process, facilitated by an experienced mediator, that can be very helpful in resolving matters like this. The mediator cannot compel any decision, but she or he can often help that people involved to break down barriers and find a mutually acceptable solution.