Tenancy in common, one owner died

[MDType]

Piece of property is owned by 5 people. One owner dies six months ago and his children refuse to go to court to probate and have property put in their name. What are the other owners options to get them forced to probate or remove the owner who died from the deed so we can sell the property?

 

[quincy]

What is the name of the state involved?

 

[MDType]

Deed and property in Virginia. Deceased owner from Florida.

 

[Taxing Matters]

You cannot forced them to do the probate to get title transferred to them. Presumably if they wanted to sell they'd cooperate and get that done. So that suggests to me they may not be interested in that. If that's true then even if they transferred title you'd still have a problem because they'd not join in the sale. The usual solution to this problem is to file in court for a partition action. In a partition action, the court will either divide up the property among the owners (as in a large vacant tract of land) or, if that's not possible, order the property sold the proceeds divided among the owners. The problem is that partition sales usually result in low prices for the property and you have the expense of the partition action. I suggest you see a local real estate attorney familiar with partition actions for advice on what you'd likely get from that in your situation and what it will cost you.

 

[MDType]

They are not interested in the property and would sign over rights if they had them. They don't want to assume the debt their father (deceased owner) may have by going to probate.

 

[Just Blue]

They are not interested in the property and would sign over rights if they had them. They don't want to assume the debt their father (deceased owner) may have by going to probate.

They won't "assume the debt"...his estate will. By going through probate and selling the house they can pay down some/all of the debt on his estate. THEY are not personally responsible for his debt.

 

[Litigator22]

You cannot forced them to do the probate to get title transferred to them. Presumably if they wanted to sell they'd cooperate and get that done. So that suggests to me they may not be interested in that. If that's true then even if they transferred title you'd still have a problem because they'd not join in the sale. The usual solution to this problem is to file in court for a partition action. In a partition action, the court will either divide up the property among the owners (as in a large vacant tract of land) or, if that's not possible, order the property sold the proceeds divided among the owners. The problem is that partition sales usually result in low prices for the property and you have the expense of the partition action. I suggest you see a local real estate attorney familiar with partition actions for advice on what you'd likely get from that in your situation and what it will cost you.

Question:

How in the instant state of affairs could a judicial sale of the property confer merchantable without the presence in the lawsuit (and due process afforded) a duly appointed representative of the estate of the deceased tenant in common?

Not too mention "divide the proceeds among the owners".

 

[Taxing Matters]

Question:

How in the instant state of affairs could a judicial sale of the property confer merchantable without the presence in the lawsuit (and due process afforded) a duly appointed representative of the estate of the deceased tenant in common?

I can think of two ways it might be done depending on the applicable state law. First is to have the court appoint a representative for the estate for the purposes of the lawsuit or have the court approve putting the funds for the estate into an escrow or similar account set aside for the estate and its rightful heirs. I don't think that the current state of things would act as a complete bar to proceeding with a partition sale.