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Friday, August 3, 2018

The child who hasn't bothered talking to Mom in years claims an equal share of Mom's estate

In my work, this is a familiar scenario. One child stays at home to look after an aging parent. Another child does not. When the parent passes away with no will, the child who hasn't bothered much with the elderly parent in recent years comes home and wants his or her equal share of the estate. This often leaves the child who has spent months or years as a caregiver feeling resentful. A reader recently wrote to me with a similar story. Here is the question and my response:

"My grandmother passed away  and she had no will. She had 2 daughters. My mom was living with her for the last 11 years, taking care of her while my aunt had no contact with her mother. Now my aunt decided to take over everything and wants to sell the house but my mom doesn't. She wants to stay because all my grandmother wanted was for the house to stay in the family. So my aunt wants my mother to start paying rent. Is there something we could do? My aunt was never there nor did she talk to my grandmother while my mother took care of her and stayed by her side until the end."

I don't think you are particularly going to like my answer.

I often hear stories such as this one in which it's suggested that the person who was good,  compassionate or attentive deserves to have more say in what happens to the deceased's assets, or even deserves to get more of the estate. When there is no will in place, none of that matters. The law looks at the two daughters as having an equal relationship with their mother.

In a case like your grandmother's where there is no living spouse and there are children, the children share the estate equally. If your grandmother wanted to acknowledge her close relationship with your mother, she should have made a will in which she divided the estate in some other way. There is no law that says  you have to be nice to your parents to inherit; if there was, plenty of people would find themselves disinherited. You don't have to deserve your inheritance; you just have to have a certain legal relationship.

When a person does not make a will, he or she is choosing to go with the division set down by law.

Similarly, if your grandmother wanted the house to go to someone in particular, she should have made a will. Otherwise the house is part of her estate and must be divided equally between her children. Her wish that the house "stay in the family" has no legal weight because she didn't express that in a will. Even if every single  person in the family heard her say it, the law says that if she doesn't make a will and she lets the house fall into the estate then she is choosing to have the house divided among her children.

When you ask if there is something you can do, it seems that you are asking whether there is a way for your mom to make your aunt go away and stop bothering her about the house. Whether that can be achieved depends on a couple of factors. If there are enough assets in your grandmother's estate that your aunt can get those assets while your mom keeps the house, then certainly that can work. I mean by this that each of them would get an equal dollar value even though one gets real estate while the other gets cash or other assets. There is no need to sell the house itself if other things are available to give your aunt her half of the estate.

If the house is pretty much the whole estate, your mom is going to have to realize that your aunt has as much right to it as she does. The house now belongs to the estate, so it makes sense for your mother to pay rent. She is living in a house she does not own. Whether your grandmother let her live there for free doesn't matter anymore; there is a new owner now. The rent would be paid, expenses (such as repairs, property tax, fire insurance) would then be taken out of that, and the net amount divided between the two beneficiaries.

Another option is to have the house valuated, then buy out your aunt's half.

If your mother made a significant financial investment in the house, there may be a further option. Perhaps your mother paid for improvements or renovations. Perhaps she paid your grandmother for groceries or utilities to the extent that your grandmother could not have afforded to keep the house without her help. If there is a strong case like this, perhaps your mother would be successful on a claim for unjust enrichment. This refers to the idea that if your mother hadn't paid what she did, there would be no house for anyone to inherit, and therefore it's unfair for your aunt to get half. I'm not suggesting that such a claim would be easy, because it wouldn't. Whether a claim like this is a good idea I couldn't say; it would depend heavily on facts I don't have.

There was no mention of a mortgage in your note so I have answered in a way that relates to a house that was fully owned by your grandmother and not mortgaged.

Either your mother or your aunt (or both) are going to have to apply to the court to be appointed as administrator of your grandmother's estate. They cannot deal with the title to the house without doing so.

1 comment:

  1. I don't think you are particularly going to like my answer.[Lynne]

    After I read the above I pretty much knew what your response would be.

    It is unfortunate that a Will was never drawn. I wonder if the daughter who cared for the mother ever spoke to her mother about that. Perhaps she did and the mother just did not want go there. Perhaps she found it painful because of her other wayward daughter. Did the mother know what would happen once she passed and the mess that she left behind?

    We don't know the dynamics of this family's relationship.

    A properly drawn up Will does not always resolve the problem as quickly as it should but it is always the best first step.
    I am the Executor of a properly drawn up Will, but a disgruntled beneficiary has chosen with the help of lawyers to drag out a simple Estate matter for 14 years.
    The question that should be asked is HOW is this remotely possible?
    Answer- lawyers. My lawyer will not respond to my very important emails.He will not call me. He has no problem sending me a huge legal bill. He however, expects me to respond and pay his bill. TBC-Webeye


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