Legal Question in Wills and Trusts in California
Property Distribution After Death
My mother passed away a year and three months ago. My brother is the executor and he and I are the only heirs. As the executor he has only distributed my share of an annuity. He has done nothing with the family home. He has not changed the title because he doesn�t want to lose the tax break my mother enjoyed under Prop 13. He occupies the house with his children, rent-free. He can�t buy me out because he has no job and therefore would not qualify for a loan. He says I should look at it as an investment. I would be willing to defer selling the house for four years if he pays the property tax in return for his occupation. After that, I need my share to correspond with my retirement date although I would be better off if we sold it now. He says we can avoid probate since the property is worth less than a million dollars.
I don�t want him to be homeless but I want to protect my share for my children�s future because of my age. Any ideas? Is there a way to allow him to stay in the house without exposing myself to any liabilities? Or am I being scammed?
2 Answers from Attorneys
Re: Property Distribution After Death
I'm sorry to say you are being scammed. Estates under $100,000 are allowed to use an expedited probate procedure, estates larger than this must be formally probated (the value is calculated on the gross value of the estate). Prop. 13 has a parent-child exclusion that allows title transfer without a tax increase. It sounds like your brother is doing nothing to adminster the estate to take advantage of the situation. You should file the probate petition yourself. The heirs can always elect to take an in-kind distribution of the house (which could allow your brother to remain in the house), but that could create even more problems down the road. We have lots of experience with this area and would be happy to give you a no cost consultation if you contact us at (310) 787-7577.
Re: Property Distribution After Death
He's giving you some bad information. Unless the title is different than your mother's name, or the property was in a living trust, probate is likely required, and the holder of the will is required to file it with the county court within 30 days of your mother's death. If he hasn't been appointed executor, or even if he has, you probably want to file a probate petition yourself to get the process going.
The good news is that under Proposition 58, the low Prop 13 tax normally passes on from parents to children. Even if it didn't, delaying the probate would only delay the extra taxes owed.
Your brother may also not be aware of it, but he owes your mother's estate fair market rent for the time he's occupied the property since her death.
With what I've heard, you're probably better off selling the house in probate, which may force him to buy your share if he's able. You can always work out something else between you, including a contract re: who pays which expenses, and a sale date of the house, but sounds like he may not want anything that doesn't include his staying in the house rent-free for as long as he likes.
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