Expert: Dick Dennis - 3/3/2010

Question
Hi Dick,
My brother and I inherited my Dad's house when he passed. We live on Long Island. I want to now sell it, and my brother does not. We are both 50/50 owners with a tenants deed. My first question is: what can I do about this? Am I just stuck here until he gives in? And my second question is: I am divorced - if something were to happen to me, would my half of the house automatically transfer to my son - who is my only child... or would I need a will for that?
Thank you!

Answer
The terminology I am sure you mean, Kathy, is either "tenants in common" or "joint tenants." Those are the two main ways people hold interest in property. In order to sever your interests in the property from your brother, you would have to hire a real estate attorney and file for a "partition suit." The judge would then determine how the property is going to be split, in most cases the owners are directed to sell the property and divide the proceeds.

If you want to save having to spend attorney fees, you should discuss with your brother how to have him buy your half of the property. It can be very simple by having two or three Realtors give you an "estimate of value." You use the average value as the price he pays half of. He would not have to pay you cash . . . if you don't need it at this time . . . but he can execute a note and mortgage to you, paying you a set amount each month until he decides to sell the property and you will get paid off at that time. But if he is obstinate about it, then again a real estate attorney would have to negotiate the division of interests.

However, it appears you may have to hire a real estate attorney anyway since you are concerned with how your son is to be covered in all this. You can indeed have your interest in property to be deeded over to your son upon your death. A will would take care of that. But the cost of a probate may be a deterrant for you and your son. Instead you might want to talk to an ESTATE attorney who would then create a revocable living trust for you. A living trust makes you the trustee of your estate, including any interest you have in real estate, and your son becomes the successor trustee. He steps into the trustee position upon your death and you don't have to be concerned about a will or probate. I hope I have helped you. I do wish you well.

Dick Dennis
dixiedee13@aol.com