Zachary Schorr is a Los Angeles attorney that established Schorr Law. Schorr Law represents clients in regard to real estate and probate matters. This includes issues surrounding disputes and other matters associated with inherited real estate.
Dealing With Jointly Owned Inherited Real Estate
Attorney Schorr discussed what a person can do in order to deal with issues surrounding inherited real estate jointly owned with another person. “At the end of their lives, many people’s only remaining asset is their home. As a result, their heirs often end up having to go through the probate process and share ownership of a house or some other piece of real estate,” Schorr explained. He explained that oftentimes people who inherit real estate in this manner end up jointly owning it as what is known as “tenants in common.”
The term tenant used in this type of situation has nothing to do with the landlord and rental law. Rather, tenants in common are defined by Investopedia as:
Tenancy in common allows two or more people to have ownership interests in a property. Each owner has the right to leave his share of the property to any beneficiary upon the owner’s death. Tenancy in common is different than joint tenancy because the transfer of the property to a beneficiary in the event of an owner’s death is different: in a joint tenancy agreement, the title of the property is passed to the surviving owner, while in a tenancy-in-common agreement, the title can be passed to a beneficiary of the owner’s choosing.
Schorr explained that a common situation in which this occurs is when siblings inherent real estate, usually the home in which a parent or parents resided. Unless there is a will that specifically spells out how the ownership interest between the children will work, all interests are considered equal.
For example, a will might set forth that all children will share ownership in the home, but one of the children will be able to live in the property for a specific period of time. If there simply are no directives like this, all children have not only equal ownership in the home but an equal right to occupy the property. This can, and oftentimes does lead to conflict.
One way out of a dilemma is to put the property on the market for sale. However, in order for the house to be put up for sale, all of the children would need to agree.
“Sometimes this works out, but other times the siblings have different ideas about what to do with the property. Sadly, this often leads to conflict during what is an already emotional process,” Schorr explained.
Schorr Law specializes in representing people in these types of situations. These are cases that arise after the probate process has come to an end. Schorr Law utilizes a legal proceeding known as “partition action.” Cornell University School of Law defines a partition action as:
A court-ordered sale or physical division of property, usually real estate, that’s owned by more than one person as tenants in common or joint tenancy. Any co-owner has the right to demand a partition.
“At the conclusion of the sale, the profits are then distributed to the co-owners in proportion to their ownership. There are many variations regarding how a partition action can proceed and so it is important for you to be informed about the law and your rights,” Schorr said.
The other type of partition action is partition by division. In this type of proceeding, a court actually divides up the property, which each sibling getting his or her own parcel. This can be difficult to accomplish. For example, Los Angeles zoning ordinances can make this type of division impossible. When partition by division is not possible, a court is likely to the procedure to undertake a partition by sale, Schorr explained.
Remediating a Hoarder’s Home Inherited by Children
Another surprisingly common problem involves children who inherit a home that was lived in by a parent who also happened to a hoarder. If the children are jointly inheriting a home in which a hoarder resided, the objective should be to try and get the hoard remediated while the estate is in probate.
The alternative would be to leave remediating the hoard to a point in time after the probate process is concluded. If that tactic is taken, the costs associated with remediating the hoard is borne by the children who inherited the residence.
Ideally, a hoard in a home is remediated during the probate process. This provides more flexibility, according to Schorr. By arranging for the hoard to be remediated, and the house put into a livable condition, there is more flexibility with how to proceed with the residence. If the hoard remains during the probate process, the only real option is to permit the house to pass to heirs either named in the will or heirs set out in California law. As mentioned, the heirs are left to deal with the mess in such a situation according to Schorr.
If the hoard is remediated during the probate process, the property can be put on the market for sale. Unless the house is to be inherited by a specific individual, rather than being the asset of multiple heirs, selling it during the probate process can be a wise course, as Schorr has explained elsewhere in this article.
The Basic Probate Process in California
If the California probate process is deemed necessary following the death of a family member or other loved one, the first step is determining whether or not there is a last will and testament. If there is a will, that instrument will identify a person to serve as the executor. In California, the executor is the person primarily responsible for carrying out the wished of the deceased person as set forth in the will.
If there is no will, the court appoints what is known as an administrator. The administrator is responsible for overseeing the affairs of the estate during the probate process. Because there is no will, the assets or property
If there is no will, but the probate process is necessary, the probate court ap of the deceased person are distributed according to the probate and estate laws of the state of California.
In most cases, the probate process takes six months or less. If there are disputes, the process can carry on for a longer period of time. For example, if someone objects to the will for one reason or another, a probate case can drag on for months, according to Schorr.
Is Probate Necessary?
The probate process is not always necessary in California. For example, if a person who dies owns property in what is known as joint tenancy with a right of survivorship, that property automatically goes to the other owner when the person dies, according to Schorr. Examples of property that can be owned in this manner include:
- Bank accounts
- Other financial accounts
- Motor vehicles
Many people with more significant assets set up trusts. Trusts represent legal instruments that can result in the ability to bypass the estate process.
Schorr explained that the probate process is not necessary “if the total value of the probate estate (the assets that can’t be transferred to inheritors in one of those other ways) is small enough, probate won’t be necessary. Currently, the cap is $150,000. Inheritors can claim the assets with a simple sworn statement,” Schorr said.