Where does home go after death of owner?
July 22, 2023 1:27 PM   Subscribe

I am a caretaker for my brother who has ALS. We are both in our 70's. He owns a suburban home with about half the mortgage paid off. I have lived in the house, on a seperate level for 10 years as his caretaker. I share the kitchen in the house. He promised the house to me at the beginning of his home care with me. About 4 years ago he had a will written up stating such, plus some monies he has. It hasn't been witnessed and signed as of yet.

He is hanging on but diminishing slowly. I dont know if he has a year or 5 years. I am just curious what happens to a house when the owner dies and the will hasn't been signed. His other family members will not contest or fight this. Thank you....William
posted by Czjewel to Law & Government (19 answers total) 1 user marked this as a favorite
If there is no will, this is called dying intestate, and distribution follows the law for intestate succession. In the US, you can just google "Intestate succession . The most common answer is that it goes to spouse (or split between spouse and children), if no spouse then the children, if no children, the parents, if no parents then the siblings. Note that if it goes to the siblings, they all inherit equally.

If you are the only heir under those rules, then it would probably work out, although it would be more of a headache than if he had a will. But if you have any siblings or especially if there is anyone that would have a higher priority (such as a child) then this will get very messy even if the relatives have good intentions since everyone else with a share would have to decline to inherit. (And sometimes, it is easier to be chill about money you don't have than to agree to give up $$ that you are legally entitled to inherit.)

You can see that this going to be messy and complicated even if no one contests it. I would very strongly advise you to be clear with our brother that if he wants you to have the house, he needs to put it in writing - signed and witnessed. If he already has the document, you can have two neighbors come over and watch him sign it. Or have a traveling notary come to the house.

It's so easy to fix, it makes me wonder where the resistance is on his side. If he really does want you to have it and he is just resisting the fact that he is dying and doesn't want to deal, this is a place to apply a little emotional pressure - if he doesn't do it, the house will have to be split up. If he loves you and wants you to have the house, he needs to make to happen. And NOW, while he still has the capacity to say what he wants.

posted by metahawk at 1:48 PM on July 22 [16 favorites]

Response by poster: Yes, it may be time for some emotional pressure. He has never liked to face things squarely, even when he was well. There have been no visitors inside the house for 3 or 4 years. I think he doesn't want to be seen in his condition. Additionally he is on heavy anti depression drugs and sees a psychiatrist 4 times a year. Heavy gummy and medical marijuana user. Has quit drinking recently. There are some hoarding issues. Not dirty and messy, but piles of clothing and stuff he feels he needs around him. Orders many things from Amazon and eBay. There are 25 or 30 boxes in the living room unopened...some from 3 or 4 years ago.
posted by Czjewel at 2:10 PM on July 22

It's important to note that the requirements for a valid will vary from state to state, so you should do the research for what is needed in your specific state. Here in Massachusetts, it's required that two non-beneficiary witnesses (i.e. people who aren't getting anything in the will) sign it in addition to the person whose will it is, and that all of this is done in front of a notary. Other states may have less stringent requirements.

The details of what happens when someone dies without a legally recognized will also vary from state to state. The general outline that metahawk laid out above is a good guideline, but the details can be much more complicated depending on what state you live in.
posted by firechicago at 2:11 PM on July 22 [3 favorites]

Would it be easier if he went to someone's office to sign? Maybe at a time when he already needed to be out of the house for another appointment? You could check the signing requirements for your state and then call ahead and make sure everything would be quick and smooth. If there was a lawyer who wrote the will, they would be probably be happy to arrange for the signing and provide witness and notary as needed. Otherwise, a notary public might be able to have people around who would be happy to serve as witness.
posted by metahawk at 2:18 PM on July 22 [11 favorites]

Metahawk has the best answer. Just let him know you wanted to take care of this when you are out and about for X reason.

Unless you think he has a concern that you are not able to continue paying the mortgage and will lose the house.
"His other family members will not contest or fight this." You don't know this. People are funny and death is always a shock.
posted by Lesser Shrew at 2:29 PM on July 22 [12 favorites]

I don't know how it is in your particular state but my aunt, who could not travel but was ambulatory (but also, not a hoarder) had a notary and lawyer meet her at her home, outside at her patio.
posted by tipsyBumblebee at 2:53 PM on July 22 [3 favorites]

Question becomes much easier to answer if you say what state he lives in.
posted by PaulVario at 3:13 PM on July 22

Response by poster: I live in New York state.
posted by Czjewel at 3:33 PM on July 22

I think you need to talk to a lawyer. Get a will written. Get his agreement first of course, and he would have to designate who his possessions other than the house itself would go to. Definitely don't do it at home where there are four year old unopened amazon boxes lying around. Intestate is not a place you want to be.

Don't know NY state laws on all this though.
posted by Windopaene at 3:47 PM on July 22

Response by poster: Windopaene, the will is already written...just not witnessed and signed.
posted by Czjewel at 3:54 PM on July 22

NY requires two non-beneficiary witnesses. It doesn't require notarization to be valid but it does require it for self-execution (not having to prove up that the document was signed, basically), which is certainly preferable, though if the notarization step proves a bridge too far for him, you can choose to skip it.

If he dies intestate, the property is inherited as metahawk described, which is a pretty standard sequence.
posted by praemunire at 5:01 PM on July 22 [2 favorites]

Response by poster: Thank you all for your help...
posted by Czjewel at 5:28 PM on July 22

Missed that part...

But you will likely need to bring your own witnesses. We thought we could go to our credit union and two folks there could be witnesses, and they were not allowed to do that.
posted by Windopaene at 6:40 PM on July 22

Response by poster: Windopaene...yes, I inquired at the town hall where all town related business is conducted. They informed me that they do not do that either. When it does happen the easiest thing would be for next door neighbors to come over and stay on the landing and me have them sign off on it. Brother doesn't want people coming into the house proper...Some mental things going on there I imagine. I don't put too many buttons as he can get annoyingly upset and rude.
posted by Czjewel at 7:15 PM on July 22

When it does happen the easiest thing would be for next door neighbors to come over and stay on the landing and me have them sign off on it.

The witnesses need to actually see the signing of the will.
posted by praemunire at 11:46 PM on July 22 [1 favorite]

My dad has been trying to set things up regarding his house when he passes, and he was particularly concerned that the house be left to his children and not be used to pay for nursing home or health care bills. I’m not the executor and haven’t been in on the conversations, but it involved some kind of legal documentation being filed at the county clerk’s office for 5 or more years before his death (iirc).

You may want to talk to an estate planner or lawyer about all of your options.
posted by vitabellosi at 10:40 AM on July 23

Have your brother sit on the porch, have two neighbors come over from next door, have these three people write their signatures and addresses on the will. Done. If your brother doesn’t want to do this because there are deeper psychological issues, MeFi can’t help.
posted by PaulVario at 2:12 PM on July 23 [3 favorites]

You may want to talk to an estate planner or lawyer about all of your options.

I agree with this; especially if it's been a while since the unsigned will was drafted and the assets in the estate have changed significantly. You can likely do this over video chat, if he's not willing to go anywhere.

If it's not a true will but rather a pour-over trust type setup (as is most common), then if it remains unsigned it also won't serve the intended purpose of avoiding in-court probate. (And if it is a true will, that will have to probated in court, then maybe it shouldn't be.)

It sounds like the house may be most of the estate. If that's so, it might be a reasonable option for him to re-convey it to both of you as joint tenants with right of survivorship now (if it's not supposed to be in a trust) — which would make it yours upon his death. But that could introduce other complications, so definitely something you need to ask a NY estate attorney.

I know it's an expense and a headache, but it will be much more of both if he passes away without the planning in place.
posted by snuffleupagus at 7:17 PM on July 23

If there's a chance he might need nursing home care, you might want to look at whether he can become eligible for Medicaid, which would cover at least part of the cost. Medicaid eligibility is complex. They look at how many assets you have and they look back in time to be sure you aren't fake "giving away" things you really still own -- you would want to talk to someone who really knows the rules.
I consulted with an attorney about a slightly similar situation and was advised that (a) there's a rule in my state (but maybe not your state) that during life a person can give their house to a relative who is a live-in caregiver for at least two years (this arrangement needs to be documented in the right way, you need to really be living there and providing care, but it sounds like you meet this requirement), and this would mean the value of the house isn't counted for Medicaid asset checks and (b) get the legal documents signed now asap, including a power of attorney/power of medical decisionmaking etc if he's open to that - we had a traveling notary and had neighbors come over and they had to watch the signing and then write down their own info (name, address etc) and show the notary their ID to verify they are who they said.
posted by LobsterMitten at 6:59 AM on July 24 [1 favorite]

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