I enjoy your articles and read them frequently. I never thought I would reach out to ask for your advice, but here we are. My husband, mother and I recently purchased a home as joint tenants in the state of Washington.
My mother is in good health, but you never know what the future holds. My sister is always struggling with money and drugs, and has used every family member multiple times, using her children as her “power card” to get what she wants.
My mother does not want to unintentionally will my sister the house. Does she need to write up a will clearly stating that the one-third ownership is not to be willed to her? Or does that one-third automatically pass to me and my husband?
There is no doubt in anyone’s mind that my sister would try to get her share. She has said many times that she has no interest in working, and thinks it’s funny when others pay her way. The idea of being legally tied to her is terrifying.
Should we disinherit my sister? If so, what is the best way to go about it?
Son and Brother
Dear Son and Brother,
You have entered into a cohabitation agreement, giving your mother a place to live and vice versa. It makes sense that you would want to ensure your mother’s share reverts to you when she passes away, assuming she predeceases you.
The issue of what happens to each party’s share of the property should have been hammered out when you purchased the house and not left up to chance, but there is still time to make sure that your home remains in the right hands.
There are several kinds of co-ownership. If you all own the home as “joint tenants with rights of survivorship” — the most common ownership agreement, particularly with married couples — you each would own a share, and inherit the property upon your co-owners’ death(s).
“Tenants in common,” on the other hand, exist when each party owns a specific share and does not automatically inherit their spouse’s share. In New York, tenants in common are entitled to transfer their share without the consent of the other owner.
“Each owner is responsible for the payment of property taxes, liens, and repairs, but generally one owner pays the carrying costs of the property and is entitled to a contribution from the other owners in proportion to each owner’s undivided share,” according to the law firm NBowers P.C.
“‘If you have children, you should make a will. If you don’t have children or property, you should make a will.’”
But your mother should make a will — as should you, regardless of your own family situation. If you own property, you should make a will. If you have children, you should make a will. If you don’t have children or property, you should make a will.
If you died intestate — without a will — your estate would go through the probate process. The probate court would take an accounting of all the assets in the estate: house, life-insurance policies, bank accounts, furniture, etc. Those assets would be distributed to the beneficiaries.
Probate is the equivalent of hanging out our dirty laundry for everyone to inspect. Depending on how much money your mother has, she may also want to set up a trust for her grandchildren and/or provide an income for her daughter, perhaps if she met certain conditions of sobriety.
Martin J. Hagan, a Pittsburgh-based attorney who specializes in estate planning and trusts, offers detailed guidance for people who are considering setting up a trust for a family member who has issues with substance use. He believes it’s best to deal with such issues head on.
“First, it would authorize distributions only if the beneficiary is actively pursuing treatment and recovery,” he writes of such a trust. “Second, it would limit distributions to paying only for the expenses incurred in carrying out the treatment plan that will have been developed for the beneficiary.”
By all means, take the time to ensure your home is secure. But your sister’s children may also need help with their education if their mother has experienced a years-long addiction. There is a bigger picture here that involves members of your family who may need help down the road.
The Substance Abuse and Mental Health Services Administration, a branch of the U.S. Department of Health and Human Services, aims to help families dealing with addiction issues. It offers advice on how to start a conversation with a loved one: “1. Identify an appropriate time and place. 2. Express concerns, and be direct. 3. Acknowledge their feelings and listen. 4. Offer to help. 5. Be patient.”
If you, or a family member, needs help with a mental or substance use disorder, call SAMHSA’s National Helpline at 1-800-662-HELP (4357) or TTY: 1-800-487-4889, or text your ZIP code to 435748 (HELP4U), or use SAMHSA’s Behavioral Health Treatment Services Locator to get help. You can also find more resources and advice for families from SAMHSA here.
Here are other resources for people with family members who have addiction issues: The Center for Motivation and Change published this book, “Beyond Addiction: How Science and Kindness Help People Change.” Dr. Robert Meyers, who has been working in the field of addiction for four decades, developed the CRAFT approach to encourage a family member to engage in treatment.
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More from Quentin Fottrell:
My mother excluded me from her will — before she died, my sibling cashed out her annuity policy, on which I was a beneficiary. Should I sue my family?
‘I’m clean and sober’: My late father left me 25% of his estate, and my wealthy brother 75%. My brother died 10 months later. Should I ask his son for his share?
‘It’s still painful’: My wife of just one year left me, took all her belongings and won’t answer her phone. How do I protect my finances?
This article was originally published by Marketwatch.com. Read the original article here.