What legal rights do I have?
1) Mom passed away in Hospice after living here at home with my husband and I for the last 8 years with Alzheimer's diagnosis in 2015. I have had POA since 2013. 2) Mom owned a house that has been on the market for 3 years and my husband and I have taken care of every detail including mowing and upkeep this whole time. The house is 1 hour one way away from where we live. We did not have my name put on the house at the time because we have had it on the market and had no idea she was going to cross. We had my name on the car as she quit driving from fear and the bank account so I could pay her bills and buy the items she needed. Plus the utilities and what ever needed repair at he house. 3) My brother has never been around to help except to gather the goods he wants so to speak and stated several times that he would sign papers to give up his right to her estate because he wasn't involved...anyway, the house is going into probate and now my brother wants his share! What can I do. I have a lawyer but he doesn't seem to be on my side!
2. If your mother had a Will or Trust, those are the definitive documents that provide what each of you (or none of you) are bequeathed to the heirs.
3. Any assets such as the house, bank accounts, etc. will either pass (a) through probate or (b) directly if the assets were titled jointly with rights of survivorship.
4. Since you state that the house "is going into probate", I'm assuming your mother left a will. If your brother was bequeathed a share, then he's entitled to it, regardless of whether he participated in your mother's care or not. unless there's a caveat in the Will requiring his participation in her care in order to inherit what might be designated for him.
5. The Personal Representative, Executrix or Executor of the Will is obligated to carry out its terms. If that's you, you have to abide by the terms and ensure that your brother gets whatever share is identified in the Will.
6. You'll have to sell the house, or buy out his share to ensure that he gets what your mother may have wanted him to have.
Since the house has been on the market for 3 years, that seems to be problematic. Frequent Flyer recently sold her parents house after finding a flipper to fix it up. That might be an option for you.
Since it appears as though there's some acrimony between you and your brother, you should get appraisals, and document whatever you do in terms of marketing, accepting or rejecting an offer in case there's a potential dispute arising from whatever sale price is accepted.
7. Attorneys represent their client's interests, but can't take sides if there are documents (i.e., Will) that exist and aren't consistent with a client's desires.
Having taken care of her and her house for so long, I think the issue of your brother's interest now is particularly upsetting. Unfortunately, you really don't have any recourse if he's named as an heir, but I would suggest that you give yourself some down time to mourn your mother so that his late interest doesn't add to the stress you're already experiencing.
You can also suggest he help with the house maintenance!
Your attorney should be in agreement on this and could write him a letter. Now I'm wondering though why you wrote that your attorney "doesn't seem to be on [your] side." Could you explain? Does he feel you owe something to your brother just b/c he's your brother?
It could be that your brother feels he should naturally inherit b/c he's her son, even though he's not named in the will. He could argue that this was an omission on her part, especially if she executed the will when she had dementia and had begun to lose cognition. Sometimes siblings feel they're entitled to inherit even if they're excluded.
That's the one area I think might be grounds for challenging the will - if she was not mentally able to understand what she was doing when she executed the will.
Any time a grown child isn't mentioned in a parent's Will, up will pop a lot of questions. Like was it an oversight, an error, did the parent forget to mention that grown child, etc. This is where an Elder Law Attorney would have advised at the time the Will was drawn that all grown children are mentioned, even if all one gets is One Dollar.
It is good that your name was not placed on the deed. So when you do inherit the house, the bases for capital gain taxes will be on the date that you inherit. If your name was placed on the deed, let's say last year, then the bases for capital gain taxes would be from the day your Mom had bought the house... and if house prices had skyrocketed over the years, that could be one hefty capital gains tax.
As Garden Artist had mentioned above, I sold my Dad's house this past summer "As Is", which means no repairs will be done, that the home inspection will be for "information only". I was lucky the Realtor found a buyer who does home flips and he came in at a good price... it was a win-win. Prior I had the house professionally Appraised to give me an idea on what it was worth "as is". The only thing I fixed was have the yard looking really nice. Curb appeal gets the Buyer in through the front door :)
Switch to an Elder Law Attorney, as this is their specialty. In fact, they will help you go through the maze of Probate if you wish to hire them to help you. I hired my Dad's Elder Law Attorney [who is my Attorney also] as the paperwork can be a nightmare if your brain is still befuddled from being a caregiver, unless your Mom had everything in a Trust. My Dad had passed suddenly before I was able to get anything into his Trust :(
I"M TIRED!
Sorry to say, but you needed to have it all spelled out in an agreement before she moved in. How apthe maintenance would be done on old house, how you would be paid for thiis, how split of house, etc would be handled....etc
I had a friend I recommended this to when her Mom moved in. The divide at the end was to be along the same lines as the effort each put in. Since Brother was never around till the funeral...he got nothing. She was nice and paid his travel expenses.
I am sorry this happened to you. You have the knowledge that he did unjustly enrich himself. As a care giver I know how annoying it is to have people tell me I am such a wonderful person for caring for my own parents.... so, all that aside...you know that you can go forward from here knowing you did the right thing...legally and ethically
Find a new lawyer who is familiar with this work that you feel more comfortable with and let the lawyers fight it out. Maybe think about putting the house up for auction which will get rid of it faster, if you have the rights for it's disposal. GA may know the answer to that. She has a legal background so you could try PM to her.