LEGAL CORNER: Can I relinquish ownership of inherited property?

Published: Jul. 26, 2023 at 2:53 PM CDT
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LAKE CHARLES, La. (KPLC) - Legal Corner answers viewers’ civil legal questions.

QUESTION: Can my siblings and I legally relinquish the ownership of property we inherited from our deceased father? If so, how do we go about doing this? Any assistance or advice you can offer would be greatly appreciated.

ANSWER: If nothing is done, it will be assumed [by a court] that the property is accepted during the succession process. Accordingly, one must follow Louisiana law to refuse her inheritance. Specifically, one must expressly renounce the inheritance in writing.

Louisiana law used to require that the renunciation be done before a notary and two witnesses. While this is no longer necessary, one may discuss whether these formalities are advisable with a succession attorney.

A person who renounces property cannot ask that the property go to a person or entity of her choice. For example, if she wants to ensure that the property goes to her children, she must accept the property and gift it to her children.

Once one renounces her inheritance, the property passes as if she had predeceased the decedent. For intestate (without will) estates, the property will pass to the next heir according to the intestacy laws. If the decedent leaves a will, the property will pass according to the terms of the will.

Refusing a gift may have unintended consequences. If one sibling also renounces the inheritance, that property may go back to a sibling who has also renounced her inheritance.

At times, it may be more beneficial to accept the inheritance. One may decide to keep the property, gift the property to one’s children, donate the property to a favorite charity, or dispose of the property another way. If one does decide that it is in her best interest to refuse the inheritance, she must do so in a legally binding way that avoids any potential complications.

A beneficiary or heir should complete a disclaimer of interest and deliver it to the representative of the decedent’s estate. In the alternative, the person inheriting property can file the disclaimer with the court that has jurisdiction over the decedent’s estate. This ensures that the person named to receive the property does not look like she has title to the property.

QUESTION: My neighbor’s pine tree is situated on a very small front yard, and it has grown very tall in almost 20 years and is 3 to 4 feet from our property line. It has several large overhanging branches, with roots that cause damage every year by the end of summer. The overhanging branches and roots encroach upon our property. We have had to replace 6′x10′ of new sod because our grass is dying. I have not only spoken to her, I have also documented damages, and on a daily basis, we have to clean up pine straw, sticks and pine cones. Pine straw has acidity and can harm/kill grass and our plants in our flowerbeds. I sent my neighbor a letter asking her to hire someone to cut the overhanging limbs/roots at her expense, and we gave permission for workers to be on our property. What is my next step without taking legal action?

ANSWER: A landowner has a duty to prevent nuisances that might adversely affect the property of an adjoining landowner. A nuisance is a substantial interference with the right to use and enjoy land, which may be intentional, negligent, or ultra-hazardous in origin, and must be a result of a defendant’s activity.

If a nuisance interferes with another person’s quiet or peaceful or pleasant use of her property, it may be the basis for a lawsuit for damages and/or an injunction ordering the person or entity causing the nuisance to stop or limit the activity. Abatement of a nuisance may involve elimination of a nuisance by removal, repair, rehabilitation or demolition.

Encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. In such a case, the owner of the tree may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. Real damage must be shown to result from the encroaching tree and leaves.

Generally, however, in cases where trees belonging to one property owner fall on and damage or destroy adjacent property, the tree owner is only responsible for damage if some failure to maintain the tree contributed to the damage. If the damage was solely the result of a thunderstorm or act of God, the tree owner will not be responsible, as the damage could not have been foreseen. If a tree limb appeared precarious and the owner failed to maintain the tree after warnings, the owner may well be responsible for resulting damage when a storm causes the limb to fall. If, however, the tree was well maintained and a storm causes a tree limb to crash into a neighbor’s roof, the tree owner is not responsible. If the tree owner allows the tree to grow so that it uproots the fence, it would be considered an encroachment onto the adjacent property. In that instance, the tree owner would be required to remove the offending tree.

Property owners generally have the right to cut off branches and roots that stray into their property, in most cases, this is the only help that is provided by the law, even when damage from a tree is substantial. A property owner who finds a neighbor’s tree encroaching must first warn or give notice to the tree owner prior to commencing work and give the tree owner the chance to correct the problem. If the tree owner does nothing, the tree can still be trimmed.

As a general rule, a property owner who trims an encroaching tree belonging to a neighbor can trim only up to the boundary line and must obtain permission to enter the tree owner’s property, unless the limbs threaten to cause imminent and grave harm. Additionally, the property owner cannot cut the entire tree down and cannot destroy the structural integrity or the cosmetic symmetry and appeal of a tree by improper trimming.

Local laws should be consulted for applicable requirements.