My parents both passed away in 2011. My brother and myself are co-trustees of their trust. We had their home listed for $925,000, but then my brother decided to move into the house (which I discovered after the fact). He is "renting" the house and paying me 1/2 of the rent, which is below average for rental homes in that area. He now expects me to pay 1/2 of the maintenance, fix-ups and improvements. I would like to put the house back on the market, or have my brother buy it. Can my brother continue to live there, even though I never agreed to it? It is a great deal for him and a lousy deal for me.
Diane, Folsom
A: I am going to assume that, in addition to being co-trustees, you and your brother are the only beneficiaries of the trust and that the trust provides that the assets are to be distributed equally between the two of you. I would also assume that the trust terminated after both of your parents died and that the assets are to be distributed and not held in trust for a specified period.
If that is the case, then your task as co-trustees is to comply with the terms of the trust. If you and your brother agree that you would like to retain co-ownership of the property and that your brother can occupy it for a reasonable rental value, you are certainly free to make such an agreement.
Since that does not appear to be the case, your brother cannot compel you to allow him to rent the property (and share the expenses) until he alone decides that he wants to vacate and sell it.
If it is your family home, it is understandable that your brother might want to live there rather than sell it. However, had your parents wanted to leave the residence to your brother, they could have so provided in their trust.
Since they did not, if he wants to retain ownership the property and you do not, he must purchase your interest in the property at fair market value or whatever price the two of you agree upon. He cannot force you to co-own the property with him. If your brother is unable to purchase your interest in the property, then you can file a legal action to force a sale of the property.
As in most cases, it is always preferable for the parties to attempt to work out their differences either informally or with the assistance of a mediator before resorting to legal action. Litigating these types of issues can be expensive and a sincere effort to reach a common ground can be beneficial, both financially and emotionally.
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