Brother’s decision needs legal action to be effective

This column first appeared in the San Antonio Express News on December 22, 2015.

Dear Mr. Premack: 2015-12-22I was at the speech you gave at Incarnate Word University about retaining control over important life decisions. I was thinking about a few issues you raised. My brother and I inherited our widowed mother’s house a few years ago as her only children. He lives there, but to help him I pay the taxes. He is divorce and has two children who have disowned him. He has diabetes and is not in great health, and I’ve gently asked what he wants for the house if he dies. He says that since it was mom’s house, I should get it; but he won’t put it in writing. If he dies without a Will, is there any way that I can keep the house? – Anon.

You say that you and he inherited your mother’s house. There were a few ways that might have happened: via a probated Will, via a Living Trust, via a Life Estate Deed, or via the intestacy laws. Whatever example she set may be a good motivator for your brother. If she selected an easy route, he can emulate it. If she selected a difficult route, he can reflect on ways to avoid the same mistake.

There is a huge difference between your mother’s situation and his situation. Upon her death, her intent was for the house to pass to her children. Your brother’s intent is for the house to pass to his sister, not to his children. Consequently, the intestacy laws cannot be relied upon to pass title to you. Instead, if he dies without a Will his 1/2 interest passes to his two children – the ones who have disowned him.

Of course, he won’t be alive to see the negative ramifications. You will. First, his children will have to go through a complex legal proceeding to be identified as his legal heirs. Then they will become your partners, and have the right to occupy the house or to receive money from rentals. They also have the right to force sale of the house so that they can get money for their half.

Your brother very much needs to correctly and legally “put it in writing”. He has the same options that were available to your mother:

  • Make a Last Will and Testament. This should be done with a knowledgeable attorney, not with an online service. The Will can recite that the house passes to you upon his death. The Will should also address his other assets if any, like bank accounts, investments, automobiles and personal items.
  • Make a Living Trust. The Trust must become owner of his ½ of the house at least. It is also possible for the two of you to make a joint Living Trust and put 100% ownership of the house into the Trust. That way, should either of you die the house can remain in the Trust without need for another change of ownership. The Trust can also specify what happens to the house after both of you die – whether that means leaving it to other family members or donating it to charity. It can also set up a management scheme regarding payment of the taxes, insurance, maintenance and repairs for the house.
  • Make a Life Estate Deed. Your brother can sign a deed in which he retains full control and benefit over his ½ interest, but specifies that upon his death full ownership passes to you. This works quickly and is less expensive, but does not cover all the contingencies which a Trust can cover (for instance, what happens if you die before your brother?).

Your brother must act responsibly and quickly. If he fails to make a well-written, binding legal plan, then he is dooming you to difficulty and loss. Encourage him to consult with a Certified Elder Law Attorney as soon as possible.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

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