Without a will, can my brother insist on inheriting a portion of Mom's house if it was promised to me?

7 answers | Last updated: Sep 14, 2017
A fellow caregiver asked...

My mother recently passed away, in NY, sans a will. She lived in a 2 family house with me. As her only caretaker, despite having a son in the area, she verbally told me that her share of the house would belong to me upon her passing. Of course my brother is now demanding his share. Do I have any recourse (against my brother) to recoup the personal, emotional and financial strains that I incurred?

Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Unfortunately, your situation serves to underscore one thing: the importance of putting an estate plan in writing. Without one, your mother's oral promise of passing title to the house to you is unenforceable in New York, as in other states.

The intent of the law is a noble one: to prevent greedy survivors from claiming property to which they have no true claim. But in your shoes, the noble aim of the law must just feel empty and unfair.

Because your mother died without a will, her property will be divided and bestowed according to the laws of intestate succession"”and as you intuit, likely divided between you and your brother if you are the closest survivors. You can apply the letter of the law against your exact family situation by visiting www.mystatewill.com/statutes/ny_law.htm. Ignore the hype on the site to see a lawyer at once or to buy a will kit, but the free intestacy calculator is interesting to use.

Beyond that, you may be entitled to recoup the value of improvements you made to your mother's property"”such as paying costs to reroof it or have a security system installed. Even those costs may be tough to repocket, however, unless you have kept receipts and impeccable records.

Otherwise, you could lobby your brother for a fair share of money to compensate you for the time and money you invested in caring for your mother. He might surprise you and agree. But if not, your best path may be simply to move on, deal with your grief"”and live knowing that you did the right thing when it mattered the most. That's worth a lot.

Community Answers

Artycraft answered...

Hi, first thing is check how the house is deeded. If it is deeded in both names with right of suviorship, I believe it is then totally yours. It needs to have something like this: JTRS, that is joint tenancy with right of surviorship. Good luck. I to am a caretaker of my mom.

Lancea answered...

We aren't all lawyers and I think the calculator is more useful than interesting. It's much more useful than a plain link to some laws.

If a standard disclaimer is "hype" what do you call the disclaimer at the bottom of this page? If a plain ad is "hype" what is the obnoxiously repetitive reminder that you are "the author of WillMaker, software..blah, blah, blah"?

Sounds to me like your real concern is making sure that nobody sees a lawyer for a will or buys a will kit from anyone but you.

Artycraft's answer is much better than yours and makes a point that you completely missed because you're too worried about making sure everyone uses your willmaker.

Journey002 answered...

Am I missing something here? The expert answer did not appear to me to be promoting anything for her own personal gain. The information given in her bio was put there by Caring.com, not her. There is a reason she is a senior editor...because she deals with this particular subject for a living. I think both answers, previous to Lance's, are very useful and insightful. Not sure what Lance's motives here are, but, I think he got it wrong. I hope that things work out for Anonymous!!

The practical expert answered...

I feel Barbara's real answer is right on. Without a will or having a surviorship deed, the property/estate goes to probate court and they will actually decided how the estate will be divided.

Improvement to property (anytime ANYONE does anything to your property that increases its value)is a totally different thing but if the questioner did pay for improvements, then she can seek to be reinbursed for it through the estate. Verbal agreements and a handshake on any land issues, is I believe, not legal in any State.

I think the best thing the guestioner can do is:

  1. Thoroughly document everything done while caregiving for your Mom, including costs you paid (aside from house/property improvement) and have receipts but also include if you left you job to care for her and the financial losses incurred through being her caregiver (figure out how many hours you actually cared for her and use the local rate of a PCA to show your contribution).
    Try to keep track of what you brother did and didn't do too.

  2. Have a talk with your brother and try to come to some equitable agreement and put it in writing and both sign and present at court.

Remember to, you didn't do the caregiving to gain money/assets, you did it out of love. You made a difference in your mother's life and that is priceless and you can go forward without guilt.

Expect nothing and what you do receive will be enough as you go forward in creating a new life. Things are out of your control, control what you can instead.

A fellow caregiver answered...

Speaking from experience - and still in court for over 5 yrs now - Mom's Will did not have the house listed. Therefore, it was divided by equal shares among the siblings. Problem was, the oldest kept saying "Family Lore" - meaning it was up to the oldest who got how much, if any! It didn't work! Just caused more problems! Greed does funny things to "creatures".

Mom's Executor unexpectedly passed away before settling her Estate, thus the long, drawn out court battle. We may be in court for another couple of years! With all of the bogus expenses, fees, etc., determined with the court - I'm not about to just sit back and watch the wishes in Mom's Will not be honored or allow her assets to be "taken" as others not in the family feel they are entitled to receive! It has been extremely expensive (THANKS MOM for my inheritance, without it - I don't know how long I could and can continue the fight to save your assets you and Dad worked so hard to acquire only to watch it going to strangers because they think no one knows what they were doing)! Still hanging in there and refusing to back down! When is a Will not a Will? How much longer will it take to get them to READ MOM'S WILL!!!!!

Gigi92201 answered...

I know tht disagreements among siblings can cause such deep hurt and family disruption after parents die. What people who write in need is help, support, and advice. They do not need us to fight among ourwelves. I don't like it either. Thanks for letting me comment. GG