Question on estate split between siblings?

My brother is renting and living in mother’s home and then took over her mortgage, does he have a right to ask for the amount paid when mom dies?

14 Answers

  • 10 months ago

    One way to understand what your bother is and is not entitled to (and explain it to him), is to imagine the exact same situation but imagine that the person living with Mom was a random unrelated person.

    So at some point your brother moved in with Mom, and in exchange for living in a house he didn't own he provided a combination of personal care and financial compensation to Mom.

    Imagine that it wasn't your brother. Imagine Mom struck a deal with a random stranger (lets call this imaginary person "Bob" for simplicity). Mom and Imaginary Bob agreed that Bob could live in Mom's house, and in exchange for that privilege Bob would provide personal care and monetary payment toward Mom's mortgage and/or monetary payment directly to Mom.

    Now imagine if Mom had passed during this arrangement - what is Bob's share of Mom's estate? The answer is absolutely nothing. You and your Brother would split the assets in Mom's estate, including the equity in the house, and Bob would have to move out. Bob wouldn't get a share of the home equity or a refund of the money he paid while Mom was alive.

    So if Imaginary Bob doesn't get a refund when Mom dies, then neither does your brother. The money he paid while Mom was alive was rent or whatever, and his share of the inheritance is 50% of the estate.

    Now, at some point, Mom, Brother and You all agreed to reorganize ownership of Mom's house and the mortgage on said house. Under the new arrangement all 3 of you were joint owners with rights of survivorship and Mom & Brother were co-borrowers on the new mortgage loan.

    All 3 of you agreed to this arrangement and signed paperwork in front of a licensed notary to declare that you agreed to participate in this arrangement.

    That means your brother agreed to be legally liable for the loan - and he agreed to the arrangement where ownership of the house was held jointly with all 3 of you.

    The "rights of survivorship" provision means that the home is not held as 3 shares of ownership. It means that all 3 of you jointly own the house, and when one of you dies, the other 2 people continue to own the house.

    Now lets re-insert that imaginary Bob guy to understand where your Brother fits. Imagine that Brother wasn't part of this 3 way house triangle, and it was Bob that signed up as co-borrower on the mortgage and the 3rd person on the deed with Mom and you.

    Bob lives in the house and makes payments on the mortgage - which is exactly what you'd expect since he is joint owner and legally liable for the mortgage debt.

    Now, what happens if/when Mom passes away?

    Your brother would be entitled to 50% of the assets in Mom's estate. However the house isn't part of the estate, since it was joint ownership with rights of survivorship.

    The house itself would continue to be jointly owned - by the surviving owners. So You & Bob would jointly own the house SEPARATE from Mom's estate, and Bob would continue to be liable for the mortgage that he signed for.

    In that scenario you and your brother would split any assets in Mom's estate, and you would continue to jointly own the house with Bob. Since the house is not part of Mom's estate your brother would not get anything from the house. Bob would continue to owe the mortgage. Bob does not magically get a refund of mortgage payments or household expenses from Mom's estate.

    Okay, that's a little confusing, but now come back to the reality where your brother is the other owner and Bob doesn't exist, here's how it breaks down:

    1. Brother and you continue to jointly own the house as the surviving co-owners. This is not a 50/50 share, you are both owners of the house. You both have the right to live there and collect equal portions of the proceeds IF you all decide to sell. If there is a dispute over whether or not to sell the property one of you can buy out the other or go to court to force a sale.

    2. Your brother is still legally responsible for repaying the mortgage loan that he willingly signed. You are not liable for the mortgage because your name is not on it - however if the mortgage doesn't get paid the bank might foreclose on the house so it would be wise of you to consider paying it if necessary to protect your ownership of the house.

    3. Your brother is not entitled to a refund of mortgage payments or housing expenses from Mom's estate. He is entitled to half of the assets in the estate, but not to extra assets or money off the top before the split. For your brother to demand anything more than his 50% stake (such as refund of mortgage payments) is as absurd as if that imaginary unrelated person we called Bob had stepped in and demanded a refund of his loan payments from Mom's estate - it's not going to happen.

    I know that analogy is a little weird, but hopefully it helps understand and explain why your brother isn't entitled to extra share of inheritance or home equity based on having paid rent and/or mortgage payments while Mom was alive.

  • 10 months ago

    It's whatever agreement you two can agree to.  Generally, if you inherit the house 50/50 and he chooses to live in it and you do not, he should be paying you a portion of rent, and you should both contribute 50/50 to the mortgage.  In other words, if you are going to get 50 percent of the property, you should be contributing to the mortgage 50/50 but he should be paying half the rent to you - whatever you both agree that it would rent for in general.  I highly recommend consulting a lawyer to draft a brief business agreement on the house so the terms are clear to both of you and one of you can't be claiming BS.

    Source(s): Certified Paralegal, with 25+ years' experience & with Landlord & Tenant law experience.
  • 10 months ago

    He can ask for anything he wants but you could take the position that what he paid towards the mortgage was partial rent he was paying to live there.  If there is no stipulation in your mothers will then the equity in the property will probably be split between you and your brother if you can come to no other accomodation but you may have to force the house sale (evict him, start a partition lawsuit) to get that money.

  • 10 months ago

    The details are hard to decipher as you put them in the comments rather than updating your question.  I have copied over the relevant comments here:

    <<He and my mom did a new mortgage over with my mom and we had to get attorney to redo deed and place Both our names are on the deed so now joint survivorship and the will says home to be split 50/50.  So will he have right to ask for the money being paid to the mortgage now?>>

    <<mortgage was rewritten with my bro on deed w mom.  I had mine, my bro and mom placed on deed joint survivorship.  he is caring for mom n paying mortgage. I want to move in he won’t allow it.  Will he get all payment of mortgage back when mom passes? Or do I need my name on mortgage also?>>

    If I understand correctly, this means that the three of you are now joint owners with rights of survivorship of the house.  Your brother is living there, pays rent and has a mortgage jointly with Mum on the property.  You are not on the mortgage.

    Your questions are:

    (1) Whether his mortgage payments are to be reimbursed by her estate when Mum dies.  The answer is no.  A bank lends money which is paid back over a period of years.  It is secured by a lien on the house.  The mortgage debt continues after the death of one of the owners so you and your brother will have to keep making the monthly payments if you want to keep the house.

    (2) Whether you need to go onto the mortgage after your mother's death and the answer to that is also no.  There is no requirement for all the owners of a house to be on the mortgage.

    One additional observation that I would make is the following:  the house cannot be left in the will.  It is going to pass automatically to the remaining joint owners on the death of your mother.  Whether it is then sold is something the two of you will need to decide.  If it is sold, any remaining mortgage debt will automatically be deducted from the sales proceeds and go to the bank.  The remainder will be divided between the two of you.  If the two of you cannot agree to sell (or do not want to sell) you can both live at the house or one of you can live there and pay rent to the other.  When ownership is joint with rights of survivorship, all own 100% of the house. 

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  • 10 months ago

    Depends on the will left by you mother. Whatever she decides and puts down in her will.

    Not sure by what you mean by the mortgage was taken over by your brother.....Is he just making the payments on your mother's mortgage or was his name formally put on the title?  Was your mother's name removed from the mortgage (by a refinance) and your brothers name added. 

  • 10 months ago

    Did he actually remortgage the property in his name, or just keep paying your mother's mortgage?

  • 10 months ago

    Your brother doesn't get reimbursed for the mortgage when your mother dies.  Since he is now on the deed he can prohibit you from moving in.

  • Maxi
    Lv 7
    10 months ago

    As you have commented about him/your mum taking out a new mortgage and having joint survivorship......

    A joint tenancy or joint tenancy with right of survivorship (JTWROS) is a type of concurrent estate in which co-owners have a right of survivorship, meaning that if one owner dies, that owner's interest in the property will pass to the surviving owner or owners by operation of law, and avoiding probate.

    That means the property belongs to him, so your mothers Will of 50/50 to heirs of the property, she doesn't have 50% of the property to give you, 100% of the property belongs to him

  • 10 months ago

    No, he is just paying rent, unless his name is also on the mortgage.

  • 10 months ago

    If your mom has granted you power of attorney, you can do whatever the power of attorney allows you to do (is it only financial?  medical?  etc).

    - if your POA is not medical and she is unable to make her own medical decisions, if the family is not agreeing on her care, someone needs to take conservatorship (formal with the courts).

    If mom has a trust or a will, that will dictate how your brother's share is handled when your mom passes.  If your mom doesn't have a trust or will, it is likely that everything will be split evenly with the siblings, it doesn't matter what your brother is paying now or not.

    As for you to move-in and take care of mom, if you want to move in and he doesn't want you to, wouldn't the easiest thing be for his to stop paying the mortgage.  Can you/your mom pay it without his help?

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