How can Louis get his inheritance if his brother refuses to move from the family home?

Q. I am one of two children, and I moved out of my parents’ home after getting married. But my brother never moved out and lives there today. Our parents are still alive and have not written a will. I assume my brother will continue to live in the family home after my parents’ deaths as he does not have the income to be able to rent or qualify for a mortgage . Assuming the house has both of our names on title after our parents’ deaths and my brother refuses to move out, is there any way for me to actually receive my portion of the inheritance ? — Thanks for any help you can provide, Louis

FP Answers: Dear Louis, what you’ve identified is not an uncommon situation. You did not give a reason why your brother never moved out of your parents’ home. Does he have special needs? This may be a key factor in how your parents prepare their estate plan. Did your parents request your brother provide for their care? Has your brother gained favoured child status sacrificing his career to provide care?

There is no easy solution to this future conundrum. You did not mention your parents’ age and health, only that they have no wills. They may want to keep their last wishes private. Even if your parents made wills, what happens if one parent dies and the other parent becomes incapable?

What if your parents’ home must be sold to fund their assisted living alternatives? Who will have a power of attorney for property for your parents? Should a parent experience a medical setback, will someone be authorized to provide consent for medical treatment? Will it be safe for your brother or your parents to reside in the home alone?

Planning is not perfect and the future is difficult to predict. However, your parents need to develop a critical injury plan with their estate plan. You may wish to be involved.

Your parents may welcome an opportunity to discuss their future needs with all their children to avoid future disputes. Meetings can be in person or online with a neutral third-party such as financial planners or lawyers. This investment could avoid future costly disputes.

In Ontario, attorneys for property are entitled to a fee for services they perform. Is your brother being paid or was he paying rent? If your brother is receiving accommodation, your parents’ estates may have to support him if his share of their estate does not provide adequate support.

When your parents die, your brother could raise support claims against your parents’ estate. If he raises such claims, he cannot serve as estate executor. What may be adequate today may not be adequate after all your parents’ taxes and debts are paid.

It is not safe to assume what your parents intend to do in their estate plan. It is worth investigating if they will share this information with you. If you live in the same jurisdiction, are you their estate trustee or executor? Have they decided to leave their home to your brother since he could not afford to purchase property?

Assuming you and your brother both inherit your parents’ property, you would share responsibility for expenses. It may be best to prepare an agreement in writing to prevent any disagreements. If one person wishes to remain on the property and the other wishes to sell it after your parents pass, a court partition application could be started to sell the property if you inherit an interest in the home.

Any dispute could be resolved through negotiations, mediation, arbitration or legal proceedings.

This information is no substitute for legal or tax advice. Edward Olkovich is an Ontario lawyer at MrWills.com. He is certified by the Law Society of Ontario as a specialist in estates and trusts law.

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