(Newsweek) - Dear Newsweek, I'm a 47-year-old woman living with my widowed mother and 10-year-old son. I have two sisters (45 and 43) who are both married. The middle sister, C, owns a house in the suburbs. The youngest sister, M, and her husband have an apartment in another suburb. I live with my mom for financial reasons (both hers and mine) as well as for the fact that she is disabled.
I have put considerable money, time and effort into fixing up structural and utility-related issues (electrical not working in sections of the house, installing jack posts to support and lift sagging sections of the floor) with my mother's house. I also started to do some upgrades my mother wanted (laid a patio floor, installed a pergola, landscaping, updated electrical, painting, light fixtures, etc.).
My mother and C have had no relationship for approximately seven years and my mother has stated that C is to receive nothing upon her death. My mom and sister M had no relationship for the past two years but M recently contacted my mother and they are rebuilding their relationship. I have no relationship with C or M due to bad blood between us on their end.
I assumed the house would become mine upon my mother's death for the reasons I mentioned. But she recently informed me that she supposedly has a will (I doubt it) that states the house is to be sold and any proceeds (there wouldn't be any due to the state of the house) be given to a local stray cat facility. This would leave my son and I homeless as I cannot afford housing in my area and don't qualify for a mortgage nor for any government-funded housing assistance programs.
My mother mentioned that C and M have hatched a plan to evict me from the house (which I know they can't do as the only person on the deed and mortgage is my mom) and sell the house, keeping any profit for themselves (again, which I know they cannot do).
What recourse do I have upon my mother's death if she: a) dies with a will that says the house gets sold and any proceeds go to this cat shelter or b) she dies without a will and I am an established resident of the house?
Jennifer, New York
If There Is a Will, It Can Be Challenged
Lara M. Sass is a New York City trusts and estates lawyer.
If your mother passes away with the house in her sole name and having left a last will and testament mandating that the house be sold and any proceeds be distributed to a cat shelter, then you would have to contest the will if you want the house to otherwise pass, in part, to yourself.
Under New York law, a will can be contested based on the following grounds:
- Improper execution (the will was not properly executed)
- Revocation (the will was revoked by the testator [person who left the will])
- Incapacity (the testator lacked testamentary [something appointed by a will] capacity to execute the will)
- Fraud (the testator was induced by fraud in making or executing the will)
- Undue influence (the testator was unduly influenced when making or executing the will)
If you successfully challenge the will (and no other valid will is presented) and your mother was not legally married at the time of her death, then the entire estate (including the house) will likely be divided between you and your siblings, in equal shares, regardless of whether you're living in the house and contributed to its maintenance, upkeep and improvements.
If the will is not successfully challenged and is otherwise deemed to be valid by the court, then the house will have to be sold and the proceeds, if any, distributed to the cat shelter. You will have no legal right to continue to reside in the home.
If your mother dies without a will and the house was in her sole name at death, then the house and rest of your mother's estate will be distributed according to state intestacy [condition where person dies without a will or other binding declaration in place] laws.
Under New York intestacy laws, regardless of whether you are living in the house and contributed to its maintenance, upkeep and improvements, your mother's entire estate (including the house) will likely be divided between you and your siblings, in equal shares. You will have no right to continue to reside in the home unless your sisters somehow agree to it or sell their ownership interests to you.
It's in the Hands of the Executor of the Will
Lawyer Mitchel Ashley is the owner of the Ashley Law Firm in New York.
If your mother indeed does not have a will, upon her death the house becomes the property of her estate. As mentioned, under New York law in this case, the estate will be split equally between the three siblings. Your sisters likely cannot force you to sell the house but when you do, they get their share of the money.
If a will does exist, then it must name an executor (a person who will run the estate). Under that scenario, the person running the estate can do as the mother wishes. Leaving no money to the children and leaving you homeless.
If no executor is named, New York law does not allow a dead person to dictate things. So, the three siblings would end up being co-administrators of the estate and they wouldn't have to sell the house. But since there is bad blood between you, your two sisters could potentially gang up on you and force the sale. But you would get your third share of the estate after the sale of the house.
If an executor is named and this person wants to sell the house, the children can fight the will and say the mother was not competent when she signed it.
By Soo Kim
May 28, 2023
