Can a house go to a brother rather than a child if there is no will?

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Can a house go to a brother rather than a child if there is no will?

Here is the scenario. Two brothers lived together, both handicapped, but able to
function with the help of each other. The house was in one brothers’s name.
Each paid one half of the house payment. The brother who’s name was on the deed,
passed away. The other brother has continued to make the house payments. His
daughter is now saying the legally belongs to her. Is there any recourse to
keeep the remaining handicapped brother in the only home he has known for 30 plus
years?

Asked on August 7, 2016 under Estate Planning, Oklahoma

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If your brother had a Will, its terms would control the distribution of his estate. However, since he died without a Will (i.e. "intestate"), the intestacy laws of the state in which he was domiciled as of his death will control. In OK, if a person dies and there is a surviving spouse and children, their spouse inherits 1/2 and their children divide the other 1/2. If the person is married with no children, then their spouse inherits all of the marital property and 1/3 of any other property the deceased spouse owns at the time of their death. The remaining 2/3 of their estate is distributed to their closest relatives beginning with parents, then siblings, etc. If the deceased is not married but has children, the estate will be divided equally among their children. If a child predeceased them, then their share will be distributed to their children. Accordingly, since your brother was not married at the time of his death but did have a child, a daughter, then she will inherit the entire estate. I'm afraid that you have no inheritance rights here.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Unfortunately, when there is no will, the property passes by "intestate succession," which are the rules for gets what when there is no will. In your state, when there is no spouse, all property goes to any surviving children--not siblings; siblings have no claim on property under intestate succession when there is a child or children. The fact that you lived there for 30 years, or the payments you made for the property, do not give you any right(s) to it: what happens to the house now is based entirely on intestate sucession. (And your disability has no bearing on the situation, either.) At most, what you did might give you some claim, under equitable theories, for repayment of your expenses or some other reimbursement; and note that it's not a given or guaranteed that a court would give you anything, but at least you can make an argument for compensation and possibly get something. The house, though, goes to your brother's child.

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Sorry to hear about your brother.
Since he died intestate (without a Will), the rules of intestate succession determine inheritance.
Under intestate succession, if your brother had a surviving spouse, she would inherit his entire estate which includes the house.
If there is no surviving spouse, your brother's estate would be divided equally among his children.  If the daughter is his only child, she inherits his entire estate including the house.
If your brother had a Will, the Will would have been controlling in determining inheritance.
If you and your brother had been joint tenants with right of survivorship, you would have inherited the house.


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