San Diego Estate Planning Lawyer Blog
If you have multiple children, it is a natural desire to provide for them equally in your estate plan. For some types of assets this is no big deal. You can easily divide a bank account into equal shares. But other types of property, such as real estate, can prove trickier to deal with. In many cases it may not be practical for multiple children to jointly inherit a parent’s home.
Son’s “Obstruction” Delays Sale of Property
A recent case from Santa Clara offers a helpful illustration. Here, a father of three adult children owned a 2.9-acre piece of land including a residence. The property was held in a revocable living trust. When the father died, his two daughters took over the trust as successor co-trustees.
The third child, a son, actually lived on the property. The sisters wanted to sell. Among other reasons, it was not possible to subdivide the property into three smaller lots. The City of Los Altos Hills, where the property was located, does not permit subdivisions into lots of less than one acre–and here, a three-way partition would have produced lots of 0.9 acres each.
The trust authorized the sisters, acting as successor trustees, to “make contracts of every kind” with respect to trust property, including the Los Altos Hills property. The sisters determined they had no choice but to sell, as they could not subdivide the property equally and none of them could afford to buy out the other siblings’’ interests. Although the son challenged their decision in court, a probate judge sided with the sisters and gave the go-ahead to sell the property.
The court actually named a referee to carry out the sale. The referee later reported back to the court that his task was made difficult by the son, who had neglected the property and left behind an “imponderable quantity of personal property” following his eviction. The referee made it abundantly clear that the son’s “obstruction, interference and quarrelsome disputes” delayed the cleanup and sale of the property.
As a result, the referee ended up assessing the bulk of his own fees against the son, reducing his final share of the sale proceeds significantly. The son objected, arguing the fees should be equally divided between him and his sisters, but the probate court approved the referee’s fees as proposed. The son appealed, but in an unpublished order, the California Sixth District Court of Appeal affirmed the probate court.
Need Help From a California Estate Planning Lawyer?
Real estate is often tricky to deal with in an estate plan. If you want your children to keep your house, you should make sure they have the financial resources to assume that responsibility. Alternatively, your estate plan should make it clear that the property should be sold in a timely manner. An experienced San Diego estate planning attorney can advise you on the best course of action for your situation. Contact the Law Office of Scott C. Soady if you would like to speak with an attorney today.