How would we divide the land and how since there was no will?

Question

My parents had passed away and there was no will. Verbally, my dad gave my brother his acre of land and when mom died last year there was still no will. There were five kids and since then my sister has passed. Can we sell the land and split it four ways. We just don’t know what or how do it since there was no will and one of our sisters has passed.

Robert Long · Answer

In California, there may be a summary probate procedure available if the property is not worth more than $150,000. If your sister left a will or heirs other than the 4 of you (e.g., she had children) then this procedure may be too cumbersome. Apart from that, you would need to consult a probate attorney licensed to practice in the state where the property is located.

Dwight Tompkins · Answer

Land cannot be conveyed by a verbal agreement under the law.   Since your mother was the second to die, and there was no will, someone in the family will need to petition the probate court to open an intestate probate case, and be appointed the administrator by the court.  The administrator under court supervision will administrate the estate, that is, pay the debts, taxes, and expenses of your mother; and distribute the estate equally between the surviving children, and the children of the deceased child.

Edward Armstrong · Answer

If your mother passed away less than a year ago you can still open a probate estate in the probate division of the circuit court.  The probate procedure will allow distribution or sale of the land in question.  If more than a year has passed since your mother died (I am assuming she was the survivor of your parents) then you you must institute a procedure called "determination of heirship."  In either case you will need to retain counsel to help you with this.

Shadi Ala'i AlaiShaffer · Answer

If the land is worth more than $50,000 it needs to go through Probate Court first before you can do anything. Either way, it sounds like you need the assistance of an attorney since there was no Will. I suggest seeking legal help before doing anything else.

Edwin Fee · Answer

The property will pass according to the intestate statute, equally among the four children and your sister's estate.

Gregory Herman-Giddens · Answer

You will need to consult with an attorney, as this is a complex situation. A verbal gift of land is generally not valid.

Kenneth Gold · Answer

The property will have to go through probate first. The verbal comment won't matter. The property or proceeds will be split between the kids and if your deceased sister had kids they will take her share.

Ben Liu · Answer

You will need to probate your mother's estate to distribute the land.

Neil Lehto · Answer

The land can be divided or sold if all four surviving children agree in the probate court. Land transfers must be in writing with limited exceptions. If your brother has made improvements it may be unfair to contest his ownership. Even if your sister was married or had children, they are not entitled to her share, which may be a windfall, especially if your brother received one-fifth as opposed to one-fourth.

Carl Silver · Answer

You don't need a will to commence an intestate probate proceeding which will distribute the land 4 ways.

Andrew Byers · Answer

In answering this, I am assuming the land was titled in both your parents names as husband and wife.  If the land was titled in your parents name, you or another interested party will need to open a probate estate in the county where your mother resided in order to settle the estate and distribute the land.  If your deceased sister had any children, her children will inherit her 1/5 share under the state's intestacy law.  If your sister did not have any children or other surviving descendants, you and your other siblings will each inherit.  The verbal gift to your brother will not be effective.

Leonard A. Kaanta · Answer

You have file a probate of your father's estate in probate court.

John Brennan · Answer

You will need to open a probate estate to transfer the property. Because you dad died without a will the statutory plan of distribution will prevail. You should consult with an attorney for this, it need not be terribly expensive or time consuming if all of the heirs are in agreement.

Maura Curran · Answer

You must file a probate for your parent's estate in order to transfer real property.  Land is not transferred verbally, you have to have a written deed signed by the owner in order to transfer the property in Florida. A Florida probate attorney will be able to work with you to accomplish your goal to transfer the property.

Thomas Edward Gates · Answer

Depending upon the state you live in, the estate passes to the children, in equal share, since your mother is deceased.  Because one of the siblings has passed, they do not receive a portion.

James Frederick · Answer

Verbal promises are not enforceable when it comes to land or testamentary matters, so your brother is out of luck. As far as who gets the property, now, it would depend on whether or not your sister had any spouse or child to inherit her share. If so, they would stand in her shoes and it would appear that everything would be split five ways.

Randy Harvey · Answer

The estate needs to go through probate since there is no will. The court will decide how the assets are divided according to Oregon probate laws.  This advice is based on the limited facts that you have provided, additional facts may change the advice.

Dara J. Goldsmith · Answer

You will need to open a probate estate.  You should consult an attorney who will need to know whose name the land titled and when you parents and sibling died to answer your question.

Charles Perry · Answer

Since there is no will, the land must pass through probate or (if the value is small enough) through a simpler court proceeding.  An oral   will or transfer of property is generally not enforceable. The property will pass by the rules of intestacy, which means that each   child would receive equal shares  but if your sister had children, then those children would receive the share that would have otherwise gone to your sister. I suggest you contact a probate attorney to help you with this process.

Frances Headley · Answer

With no will, the property should be divided equally among the living siblings.  You should consult a probate attorney about intestate succession.

Norman Green · Answer

Go to a lawyer and open probate.  Each of you will be entitled to an equal share.  (Presumably it will be sold and the proceeds divided.)  If your late sister is survived by any issue, they will be entitled to divide one share as well.

Victor Waid · Answer

Someone in your family will need to file a petition to administer the estate of your father to obtain the title to the property. Eventually, a court order will issue showing the title of the land to be divided into all of your siblings and to the children of the deceased sibling. Obtain the services of a probate lawyer as this will take some time to accomplish.

Brian Haggerty · Answer

Someone has to petition the court to be named administrator of your mother's estate. You should be splitting things five ways, if deceased sister had children and survived your mother. Get a lawyer to handle the administration of the estate.

Michael Stafford · Answer

If the property is held in the names of your mother and dad or either of them the property must be probated.  You don't need a will to probate real property.  You should consult with an attorney to determine your rights.

Darin Christensen · Answer

Under intestacy (the law providing how assets are divided if there is no will), equally among the siblings, with a share for the deceased sister's descendants if there are any.  You would need to do a probate or small estate affidavit before selling the property.

Find a Lawyer

Ask a Lawyer

Read Legal Articles

Ask a Lawyer

Read Legal Articles

How would we divide the land and how since there was no will?

25 ANSWERS

Find Local Estate Planning Lawyers

Helpful Resources

Ask a Lawyer