My brother wants the house my mother left me, can he take it from me?

2 answers | Last updated: Oct 07, 2016
A fellow caregiver asked...

I was hoping you can assist with some general questions...

Twenty years ago my Mom willed modest house/estate equally to her 3 children. However as years went by, she became ill and I stayed in her home with her for 10 years before she entered nursing home. I gave up all vacation time and used my sick time for her care. I hired aids to look after her when I went to work. Other siblings were long gone. I am health professional and was "child caregiver" for her. She gave me the house, consistent with medicaid rules, about 7 years ago. Recently Mom passed, and my younger brother is executor... he wants 2/3rds of MY house and the contents Mom left 8 years ago (much was given away or discarded.) He keeps quoting old will that predates the sale of the house to me. Matter of fact, he abused his POA/executor power to remove me from Mom's $250k life insurance policy and is refusing to give me $80k unless I title my house to him (and perhaps my sister.)

Mom was never incompetent and ~7 years ago instructed her elder care attorney (hired by my brother) via notarized letter that I was to get the house and contents. The elder care lawyer my brother has been using is no longer able to practice (not sure why?)

Mom died on medicaid with little other than that life insurance.

House title is in my name, I'm fairly certain they can't take it, but who owns contents left behind so many years ago?

FYI, not that it really matters but I willed house back to my brother and sister in my will.

I'm disabled myself now, on fixed income and unsure if I can afford the $6,000 retainer that orphan/probate/surcharge attorney requests to straighten out this mess.

Thank you for any direction.

Expert Answers

Judy and Fred co-mediate family property and financial conflicts, and each work individually as mediators as well. Judy Barber, a mediator and family business consultant, assists clients in resolving overlapping family and money conflicts so they are better able to make sound estate planning decisions. Frederick Hertz is an attorney and mediator who specializes in resolving co-ownership matters involving families, siblings, spouses, cohabitants and domestic partners.

This is not a simple situation, and it paints a striking picture of the complicated legal and emotional intersections between love, money, property and caretaking that so often emerge over the decades of parental care. From a legal perspective you have three separate questions: 1. Can your brother overturn your mom's gift of the house to you, which it appears that she did in consideration of your ten years of caretaking and to qualify for Medicaid assistance? 2. Who is entitled to the stuff in the house, much of which has already been given away? 3. Can you challenge the change to your mom's insurance policy that removed you as a beneficiary?

You mention that you probably can't afford an attorney, but because your brother is the executor you may need to hire someone to represent you in the probate, as otherwise your brother might be able to "reclaim" the house in part for himself. And, since you own the house perhaps you can take out a small equity line to pay for some legal counsel. So long as you are able to present a defense your brother probably will not prevail in the first claim, given the history of your mom's competence and the amount of work you did for her, and the same outcome probably would result for question 2. As for question 3, if your mom was still alive when he changed the insurance designation and she didn't override him "“ which she could have done legally "“ it will be hard for you to contest that decision. Since you have received the house I would be reluctant to push on that challenge.

Thus, our hunch is that taking a "legal" approach probably wouldn't be in the interest of either of you, long term. We encourage you to let things stand legally the way they are. To that end, it may be prudent for each of you to confer with counsel, so that you can each let go of any notion of using the courts to resolve these disputes. You also might benefit from reading some of the related articles at

The bigger question, therefore, is how to manage the ill will and difficult feelings in the family. Both you and your brother want to be treated fairly. In our experience, siblings who continue to accuse each other of wrongdoing find little room for understanding each other's view about what is fair. The fall-out is often long-term damage to sibling relationships and difficulty resolving the conflicts.

Before the two of you wrestle with the final solution, we recommend that you each make an effort to learn about the other's perspective and commit to a give-and-take until you both are okay with the outcome - meaning each of you can live with it. You might meet with a third party facilitator such as your sister if she is neutral, or another family member or someone else everyone trusts who will insist you listen to each other, and ask you the following questions: "¢ If your mother were in the room with the two of you right now, what would she say about your estrangement? "¢ Although each of you believes your perceptions match your mother's wishes, what would she say to you about the fairness issue? "¢ Based on what is going on in your lives, you both want to receive more than the other from the estate - does this relate to fairness, and if so, how? "¢ Does one of you have a greater financial need than the other, and how can that be addressed? "¢ How could the two of you work to meet each other's needs? "¢ Based on your discussion, what are your next steps?

These aren't easy questions. They may even feel scary. An honest dialogue may lead you and your brother to a more empathetic relationship. Committing a facilitator to this discussion would be a leap of faith, and only the two of you can decide if the risk is greater than the alternative.

Community Answers

Ca paralegal answered...

The one thing I want to add to the excellent answer above is that you say your brother violated the POA. Was the power of attorney set up to go into effect immediately or only upon a certain condition such as inability to act on her own behalf? If it wasn't set up to go into effect immediately, and your mom did not meet the condition requirement, the action was illegally taken and, with a doctors letter saying your mom was competent (or whatever the condition was), the insurance company should return the policy to it's former state.

You may not need legal representation to get the insurance company to do this.

Best of luck.