If your sibling refuses to vacate the home of your late parents, you may wonder about next steps. This can be a difficult and emotional situation, but there are several legal methods you can use to find a solution. Let’s take a look at the options available to you under Texas law.
When a Deceased Parent’s House is In Probate
If you have a sibling living in the family home refusing to vacate, you may wonder what your next steps are. Whether it’s a vacation home, a primary residence, or a trust property, if you have an interest in the property, you likely have or will have legal rights.
However, during probate, the home has not yet been distributed as part of your parent’s estate. So the estate executor, personal representative, or trustee of a trust is given charge over the estate until the estate pays debts and taxes. Then, the representative distributes the estate’s assets to heirs.
The probate judge may order that the property be sold or divided into separate properties according to the wishes of the deceased parent(s). If a sibling refuses to leave, they can be held in contempt and possibly even jailed until they comply with a court’s decision.
If the will (or trust) leaves the home to your sibling, they may be legally allowed to stay on the property during the probate period, depending on the executor and the probate court judge’s decision.
However, when your sibling inherits through a will or trust, it is possible to contest the will or trust for various reasons, including if parents signed without their mental faculties or if they signed under duress.
When There is No Will, Trust, Or Deeded Transfer
If the family property was not left through a will or trust, “Texas Intestate” law prevails. Parents without a will or trust allow their inherited home to pass through probate court under “intestate” law, which specifies who will inherit the home.
However, if your sibling owned the deceased parents’ home jointly with the right of survivorship, probate and wills or trusts are irrelevant. Let’s see what can happen when parents leave property to a sibling’s share(s) through a co-ownership or transfer on death deed.
Options For Non-Probate Assets: Joint Ownership
Depending on how your parents held the title (joint tenancy, tenants in common, life estate), they may inherit the home of your parents outright. If your sibling owned the home with your parents in a joint tenancy or life estate, they owned an interest in it while your parent was alive and inherited the home outright at death with a survivorship clause.
One thing to consider is that, since they owned an interest in the home in joint ownership before your parent’s death, they will pay capital gains tax if they decide to sell the home. This is because the basis of the home’s value does not “step up” at the death of a joint owner.
In other words, let’s say you own a home jointly with a parent who bought it in 1965 for $85,000, and it is now worth $450,000. When your parent passes away, if you sell your home for $450,00, you will OWE TAXES on your $365,000 income!
Consult with a real estate attorney for solutions to capital gains tax predicaments.
Options For Non-Probate Assets: Deeds
Inheriting a home as a Transfer on Death Deed is a better choice than joint ownership for an inheritance. A TOD gives the heir a “step up” in basis, allowing for no need to pay capital gains taxes at the death of the parent.
In other words, if you inherit a home bought in 1965 for $85,000, at your parents’ death, it steps up in basis to its worth now of $450,000. Since you inherited the home at $450,000, you will NOT owe taxes on $365,000 income!
Because of capital gains tax, there may be a way you can strike a deal with a sibling who co-owned property with your parents. If they wish to sell the home, they may be concerned about capital gains taxes (or they may not know about the taxes until you inform them).
Making a Private Arrangement with Other Siblings
If you both inherit the home with equal shares, but you don’t want to live there, perhaps you could allow your sibling to stay with a rent payment plan. In this way, you may not need court involvement.
Even if you inherit as the sole owner, you can always make rental income by letting your sibling stay. With property values up in the Houston area, even if you still pay mortgage payments, a rental income can bring in money and equity holdings. And, you can help keep family strife to a minimum with a mutual agreement.
Always check with a real estate attorney before making any real estate deals with other heirs, however. There may be certain aspects of the situation or legal matters related to Texas law that you have not considered.
However, if your sibling inherited the property with a Transfer on Death Deed (TOD), then they own the property regardless of what the will or trust states.
Unless you have reason to believe that your parent(s) lacked mental faculties when they signed the TOD or they signed it under duress, there’s not much you can do. However, talking with a real estate attorney can give you a better idea of other possible options.
How to Evict a Sibling From Your Inherited Property After Probate in Texas
If you rent property to a sibling and then find yourself in a situation where a sibling is living in your inherited property without paying rent, then it’s important to understand how eviction works in Texas.
The eviction process begins with filing an eviction notice suit of unlawful detainer for repossession of real property and applying for a temporary injunction to get the sibling out of the house.
In most cases, this will be filed with the district or county court where the property is located. Once you’ve filed suit, your sibling will receive an eviction notice of their rights. The notice informs them of their right to contest the eviction.
If the court grants you possession, you can turn to the local sheriff for assistance in getting your sibling out of the house.
It’s important to understand that eviction is a legal process and requires patience, as there are no shortcuts. To successfully evict a sibling from an inherited property in Texas, it’s crucial to know and follow all relevant laws and regulations before taking any action.
Consult with an experienced real estate eviction attorney to protect your rights and interests throughout this process.
Partition Lawsuits for an Inherited House
Let’s say multiple siblings are inheriting a house jointly as co-owners with equal ownership percentages. In that case, you and your surviving siblings have equal rights to stay in your deceased’s parent’s home.
However, you can work with legal counsel to negotiate what comes next. With multiple siblings often inheriting a house together, it’s normal when siblings disagree about what to do with the property.
For example, while one sibling may wish to sell, another may wish to stay there and pay rent. A third sibling may want to file a partition action lawsuit for dividing the inherited property into equal parts. All three siblings in this example have the right to file a partition lawsuit. In this type of suit, a judge may divide the land into separate properties through legal action. Or the judge may order a sale of the property and the proceeds divided equally among siblings according to the will or trust.
Under Texas Property Code § 23.001, a joint owner can file a petition to force the creation of separate and distinct parcels from a single property. If the property cannot be equitably divided among the owners, then the court-ordered division joint owner can force the sale of the property. Courts will generally avoid forcing a sale since forced sales happen at public auction.
However, if the real estate belongs to heirs, Special Rules in Texas Property Code Chapter 23A may apply. In this case, heirs may buy out the interest of the co-owner who is attempting to force the home’s sale. The other owners (heirs) may then list the property with a real estate broker for its fair market value. The property does not go to auction when the special rules apply.
Finding Your Best Options
If you have a sibling who is refusing to move out of the home of your deceased parents, talking with a knowledgeable real estate attorney can give you your best legal options. Unfortunately, this situation can often lead to conflict and disagreement among family members. An experienced attorney can give you many options to work out an agreement with one or more siblings.
It can be difficult to find a peaceful resolution to your complex financial situation as an heir. It is essential to remember that the law does provide options and solutions, but ultimately it will be up to you, your siblings, and your attorneys to work together to come up with a solution.
Often, it makes sense to work with siblings in mediation or attorney-led negotiations rather than taking one or more family members to court. Avoiding family strife may be worth it!
Our Experienced Real Estate Attorneys Can Help
If you have any questions about your legal rights in this situation, contact us at The Jarrett Law Firm to speak with an experienced real estate attorney. We can help you understand the state laws governing real estate assets as well as the complexities of joint ownership, right of survivorship, transfer on death deeds, capital gains taxes, and filing a partition suit.
Talk with us for your best options when you need legal action for a sibling living in a deceased parents’ house. Get in touch today to start moving forward in this process!