Reclaiming The Family Home

Reclaiming The Family Home

May 17, 2024

Imagine this: your father’s passed away, your mother’s in declining health, and one of your siblings, who has been living rent free with your mother for several years, has already stated they plan to continue living in the house after your mother’s death.  He maintains this claim, despite knowing that your mother has a Will that leaves everything, including the house, to all of her children in equal parts.

The Question

In this situation, can the sibling who lives in the house assert a greater claim on the house since it is their primary residence?

The Answer

The short answer is no. Your mother has a Will and, under North Dakota Century Code § 30.1-12-01, upon her death, her real and personal property will be distributed according to the terms of that Will. However, there are certain restrictions and limitations, such as the homestead allowance and exempt property.

Under North Dakota Century Code § 30.1-07-01, a surviving spouse is entitled to the homestead (as defined in North Dakota Century Code § 47-18-01) and exempt property, including a certain amount of household furniture, appliances, and personal effects.  If there is not a surviving spouse, the decedent’s minor children and any other children who were being supported by the decedent are jointly entitled to the exempt property.

In our hypothetical situation, your sibling is not a surviving spouse and is not entitled to the homestead allowance, but may be entitled to the exempt property.

The Solution

If one of your siblings wants to remain in your mother’s home, you and the rest of your siblings have two main options.  You can either have the sibling who wishes to remain in the house agree to a buyout or you can have them evicted.

Under North Dakota Century Code § 30.1-20-11, if a court cannot divide property between the individuals set to inherit, it may order the personal representative of the decedent’s estate to sell the property so that the proceeds may be divided. The forced sale may be avoided if the heirs can agree to a buyout for the fair market value of the property.

Alternatively, if a buyout is not possible and your sibling still won’t leave the home, it may become necessary for the personal representative to begin eviction proceedings.

If you have any questions regarding probates in North Dakota, please contact us!