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I'm developing a story idea in which the protagonist co-inherits their grandmother's home with their sister and, long-story-short, I'm trying to create an obstacle where the sister wants to sell the home, the protagonist (who ends up moving into the home) wants to keep it, but legally the sister has some sort of upper hand.

Now, I (obviously) know nothing about the legalities of inheriting a home and my intention is not to write a courtroom drama-- the potential sale of the house is part of the conflict/impetus for the protagonist to take action, but not the main focus of the story. However, I do want to make sure I'm being accurate and also open to how realistic legal processes and implications might inform the overall story.

I'm doing research on the legal process of inheriting real estate-- but can anyone offer guidance on where I can start or suggestions on potential scenarios?

*The story is based in the US, but I'm not tied down to a specific state yet.

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    I don't have time to write a full answer right now, but searching on the phrase "partition action" will get you some blog posts (from law firms) about forcing sale of jointly owned property. Sep 29, 2022 at 1:56

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Normal ways of owning a house don't allow this

In common law jurisdictions (so, be careful if you set this in Louisiana which has mixed civil/common law) the normal ways that residential property is owned would either require the agreement of all parties to sell or one party could sell their share but they could not force the other party to do so.

However, there are lots of ways that property can be abnormally owned.

First, there is the transitional period where the property is legally owned by the Estate of the deceased for the benefit of the beneficiaries and administered by the executor of the will or the administrator if there is no will. If the house was bequeathed specifically to the beneficiaries then the executor must arrange for the legal transfer. However, if there is no will or the will just bequeaths assets without identifying them then the executor/administrator has discretion on whether to transfer the house or to sell it and distribute the proceeds. If this is shortly after the death and the sister was the administrator, she could decide to sell.

The house could be owned by a company. If so, the director(s) would be able to dispose of it. The director(s) are appointed by the shareholders and if the sister had more than 50% of the shares, well. This is not a particularly common way of owning residential property because it has tax disadvantages but it is a common ownership method for industrial or commercial property: many companies own the land where they do business. Perhaps the house is a small part of a large factory complex?

The property could be inside a trust with the brother and sister as beneficiaries but the sister as trustee. Trusts can be discretionary (i.e. the trustee decides who gets what) or unit trusts (like having shares in a company - you get it in proportion to your holding). The latter is the way publicly traded property trusts work. While the trustee has to operate in line with the trust deed and for the benefit of all the beneficiaries, the sister may, reasonably or unreasonably, decide that selling the house is in those interests.

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  • "[O]ne party could sell their share but they could not force the other party to do so." Can't one co-owner file suit against another for partition by sale? Or am I misunderstanding the concept there? Sep 29, 2022 at 12:14
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If the house was left by will, the will controls, and it may contain just about any odd condition the testator (the person making the will) chooses to include. But nothing odd is required here, if the house is left in unequal shares, so that the sister gets, say two-thirds ownership, then she can control whether and when to sell it. Or of hte house is just part of the general estate, not left specifically to any one person, but the sister is the executor, she controls what to do with it, including whether to sell it and at what price.

Just because the brother is living in the house does not give him any veto over whether or not to sell it.

If the was no will the local law on intestacy controls, and in most jurisdictions all siblings will get equal shares. But one person, who may or may not be one of the heirs, will be named administrator by the probate court, and that person can control such matters. If the sister is the administrator, she controls sale or not.

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  • At least in Australia, if the sister owns a greater share she can sell her share but she can’t force her brother to sell his share. Tenants-in-common are like shareholders in a company, you have a say in what happens to the company but you can’t sell the company, only your shares in the company.
    – Dale M
    Sep 29, 2022 at 1:44
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This could be as simple to set up as having them be deadlocked co-executors of the estate. Here's an article that describes the various ways such deadlock is resolved in court: https://link.springer.com/article/10.1007/s10991-018-9212-3

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