December 9, 2023

My younger brother suggested that I reach out to you for advice about my family home. The names of my elder brother and mother are on the house deed. He pays the mortgage monthly, and he often has difficulty agreeing on whether to take out a home equity loan.

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To help settle these disputes, would it be a good solution for my mother to swap me for my mother with my brother as the share owner? As a share owner, will I have the power to decide on a split on future home sales – even if I am not the one paying the mortgage?

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Our childhood home was sold 15 years before my dad passed away, and at that time both my younger brother and I had agreed to use the equity in another house for my mom to live with my older brother. Instead of splitting down the middle we three children.

Now the concern is that when my mother passes away, my elder brother will not honor that original wish. Therein lies the question whether I should be added as a co-owner of the house to ensure proper partition if the house is sold in future.

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Our concern is that my older brother is likely to adapt when it comes to home sales and equity splits. He makes irresponsible choices.

What should I do? How do I approach this with my mother and brother? Your insight is appreciated.

representation of all our siblings

Dear Brother,

He may be irresponsible in some ways, but paying your mother’s mortgage—assuming she needs help—is a responsible job for your brother.

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It is always a good idea to seek legal advice before this Taking such a big step. It was a mistake to have your brother take over your mother’s housework, but it is now. It cannot be reversed without your older brother’s permission. He’s paying the mortgage monthly, so I can see why he believes it’s a fair or good outcome – for him, at least. How you approach this sticky situation depends on the ownership shared by your mother and older brother, and what state they live in. But it sounds like there are one or more obstacles in your plans.

There are several types of co-ownership. “Tenants in general” exist where each party owns a specific share and does not automatically inherit their spouse’s share. In New York, tenants are generally entitled to transfer their share without the consent of the other owner. However, even if the same happens with your mother and elder brother, it does not completely solve your problem. You will only own 50%, so you and your younger brother will each own 25%. Alternatively, your mother can just write a will, leaving 50% of the share for you and your younger brother.

“Each owner is responsible for paying property taxes, liens and repairs, but generally one owner pays the carrying cost of the property and is entitled to contributions from other owners in proportion to each owner’s undivided share,” K. According to New York based law firm nBverse PC, “If one of the owners wants the property to be sold outright, they can take an action of partition through the courts, which compels the sale of the property.” (If the deed does not specify any type of ownership, it is considered a “tenant in general”.)

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If your mother and older brother owned the house as “joint tenants with rights of survivorship”—the most common ownership agreement, especially with married couples—they would each own 50% of the property upon the other’s death. will be the heir. “While an interest in a joint tenancy cannot be created (transferred by will) a joint tenant may during his lifetime convey all or part of his personal interest to a third party, although this would alienate the joint tenancy, in general will create tenancy in the form,” says NBverse PC.

It doesn’t sound like you were intending to split the house on 25/25/50 before your brother included in the deed, but assuming your brother wants to keep his share, you’ve cornered yourself. is depicted. Talk to an attorney in your state and find out the best strategy. Maybe you and your younger brother each have a 25% stake, and given that your brother is paying the mortgage, I can see why he would be comfortable with that outcome.

It will certainly be a good outcome for him, even if it is a sad outcome for you and your younger brother.

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