Phone
(800) 973-1540

Can someone continue to live in a home that has been willed to four people?

Jennybrwneyes asked...

My ex husband lived with his grandfather. His grandfather had a will made. He made my ex-husband the executor of the will. This past week his grandfather passed away. I know that he left his home to my ex-husband and my 3 kids that we had together. The problem is that my ex-husband told the kids he plans on living in the home. He has no intention of moving out. So my legal question is: can he continue to live in a home that was willed to 4 people. I am feeling like I may need to take legal action for my kids sake.What happens in a situation like this?

Expert Answer

Judy and Fred co-mediate family property and financial conflicts, and each work individually as mediators as well. Judy Barber, a mediator and family business consultant, assists clients in resolving overlapping family and money conflicts so they are better able to make sound estate planning decisions. Frederick Hertz is an attorney and mediator who specializes in resolving co-ownership matters involving families, siblings, spouses, cohabitants and domestic partners.

First, you need to determine precisely how the ownership was to be shared under the terms of the will. Was it equally shared, or did your ex-husband have any preferred rights of ownership or occupancy?

Second, in every state there is a probate process, through which the ownership passes from the "estate" of your ex-husband's grandfather to the four designated owners. Your ex-husband has a legal duty to handle this process, and if he fails to do so any of the other heirs can commence it in his stead.

Then, third, if the property was to be equally shared, then once the probate process is completed the four heirs will be owners, just as if they had purchased the house together. Typically each owner has an equal right to occupy the house, without paying any rent to the other owners. However, each owner also has a right to demand that the house be sold and the proceeds divided up equally. Because of this option, in most instances the person who wants to stay living in the house will need to offer to pay an occupancy payment (equivalent to rent between co-owners) to the non-occupying owners, to dissuade them from forcing a sale of the house.

Given this legal framework, we suggest that your kids retain an attorney to advise them about the probate process, and also about the co-ownership rules for your particular state. Then, once they have the legal knowledge they need, they should open up a discussion with their dad to decide how best to proceed. In most instances it makes sense to convene a family meeting "“ probably without lawyers at first, to discuss what to do about the house. As every lawyer will tell you, resolving these issues through the legal system is a horrible and expensive mess, and is something to be avoided if at all possible. Your kids will need to know how the legal process works in order to be effective advocates, however.

One last point. We want to caution you about being too involved here. Your kids are the heirs, not you, and this is an issue they will have to deal with themselves. Of course you can provide guidance and you can help them find (and pay for) an attorney, but it may not be helpful if you are seen as the primary driver of this train!