My father didn't leave a will, and I live in his house. My brother wants to divide it. Can I make it solely mine?

Prahlad asked...

My father died without making a will. I am living in the house and have been for twenty years or more, and my brother lives in a different city in his own house. After my father's death, my brother wanted to divide the house. Is there any way I can secure that the house can remain mine?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Because your father died without a will—or “intestate” in legal jargon—his property will be divided up and distributed according to the formula set out in state law. These state formulas specify that the property goes to those most closely related to the person who has died. If you and your brother are the two survivors most closely related, the law likely specifies that your father’s property—including the house—should be divided equally between the two of you.

This may not seem right to you, since you have been living in that house for so long now that it likely feels like your own, but the law operates with blinders—and treats you both equally.

If it is most important to you that you remain in the home, you may be able to negotiate an arrangement with your brother—perhaps to buy out his share in a lump or over time. Or perhaps your father owned other property—and you and brother could agree to a way to divide them fairly and in a way that might let you remain in the home or own it outright.

To begin the process of transferring legal ownership of your father’s home and any other property, you or your brother should contact the local probate court for the best next steps to take. Where there is not a lot of property at stake, survivors can often use a simplified procedure to wind up an estate, which they can usually handle on their own, without hiring a lawyer for help.