Losing a parent can devastate you and your siblings, and the experience is made even more difficult when you have to deal with their last wishes regarding their estate.
How is property split among siblings? Can one sibling force the sale of a property? We answer these questions and consider what siblings and parents need to know about these emotive issues.
Tip: Have you thought about investing your inheritance? Look at these options.
Options regarding the family home
Lizl Budhram, advice and product strategy manager at Old Mutual Personal Finance, says that a family residence is often the only fixed property in the estate of deceased parents. She adds that, in many cases, it also constitutes one of the most significant assets.
“If the deceased parents have more than one child, the property is often bequeathed to them in equal shares. Such a bequest, which results in co-ownership of the property, has some important practical and legal implications that should be understood by the parents when drafting their will, as well as by the children when inheriting the property,” says Budhram.
She explains that the Latin maxim communion est mater rixarum warns us that, even from ancient Roman times, co-ownership has been regarded as the mother of all disputes.
“A house cannot be physically divided and handed over to siblings in equal parts. In an ideal scenario, the siblings will be able to agree on what they would like to have happen to the inherited and co-owned property,” says Budhram.
This may include one of the following options:
- Reside in the property together
- Sell the property and split the proceeds
- Rent out the property and split the income
- Have one of the siblings reside in the property and pay rent to the other sibling
Budhram says that if they agree to sell the property, they can ask the executor of the estate to do so before ownership is transferred to them. They will then effectively inherit the proceeds of the property.
Can one sibling force the sale of a family home?
Budhram says that the executor has the final say in the property at hand. If one sibling wants to sell and the other sibling wants to retain the asset, the executor will be entitled to make the final decision, albeit with the approval of the Master of the High Court. The will may, however, explicitly prohibit the sale of the property by the executor.
Alternatively, the siblings can sell one half-share in the property to a third party. “The sibling who wants to keep the property will then need to buy the other sibling’s share, which means having access to the necessary funds,” says Budhram.
However, she adds that, practically speaking, it will be difficult to find a buyer for a half share in the house.
“Alternatively, the sibling that wants to sell the property can bring a court application to force the sale and bring the co-ownership to an end. Such a court application will incur legal costs,” warns Budhram.
How to navigate estate conflicts
Michelle Orsmond, attorney, notary public, and conveyancer at Hammond Pole Attorneys, says that dividing property can cause tension between siblings, and emotions may run high at times.
“Although difficult, it’s important to remember that this is a legal process, and it will be handled as such. No amount of fighting or added tension will change the outcome of the last will and testament,” says Orsmond.
Budhram suggests the following steps to prevent a tense situation:
- The first step is to take a careful look at the will and to make sure all the provisions of the will are considered and understood.
- Step two is for the siblings to have a conversation to discuss their preferences and plans regarding the co-owned property. The siblings should agree about what they would like to do.
- Lastly, the siblings should have a detailed conversation with the executor to express their preferences and requirements.
“Another way to avoid conflict is to sell the property at the earliest possible stage, which will eliminate any future arguments. It also frees the siblings to do whatever they wish with the proceeds of the sale that each receives,” says Orsmond.
A note for parents drafting their wills
Budhram says that if you are a parent currently drafting or reviewing your will, and you’re considering bequeathing property to your children to be co-owned, it’s important to give the practical implications careful thought.
“Alternatives to be considered include dividing the estate assets equally between the children, with each child owning different assets individually, or using life cover to be able to leave the property to one child and a cash equivalent to the other child,” says Budhram.
She adds that each family is unique and there is no such thing as a one-size-fits-all financial plan. It’s therefore imperative to carefully weigh up all possible implications, taking into consideration the unique position, personalities, and dynamics of each family.
If you’re not meeting your debt obligations, consider debt consolidation.