How can I allow my brother to stay in my mother’s house after her death, be responsible for all expenses, taxes utilities, maintenance and then sell the house with proceeds going to the heirs if and when he decides to leave the house.

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How can I allow my brother to stay in my mother’s house after her death, be responsible for all expenses, taxes utilities, maintenance and then sell the house with proceeds going to the heirs if and when he decides to leave the house.

I am the Executrix of my mother’s estate. Her will says her house is to be sold and divided among the heirs. One brother lives in the house but has no ownership of it. A note written later by my mother says she would like my brother the opportunity to stay in the house as long as he chooses and when he decides to move it should then be sold and the proceeds divided. She used the term life estate, but the explanations I find for life estate seem to allow for her to have given it to my brother before her death and then she could stay in it until death. All of the heirs are in agreement that he could stay in the house if he accepts sole responsibility for it while he is there. He can not afford to buy the house from us.

Asked on September 6, 2019 under Estate Planning, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Her note does not create a life estate: a life estate could have been created by her will, but would have to have been stated in the will--no "note written later" has any power or effect (other than "moral power"--i.e. the fact that you'd like to honor your mother's wishes, if possible) since only a properly executed and witnessed will controls what happens to property after someone dies.
You write that he has "no ownership of it"--that is, he is not an heir and did inherit any interest in the home. That means he is not an owner but is either a guest or, if you lease to him, a tenant. You and the other heirs could enter into a lease with him in which you charge him rent in an amount equivalent to the home's monthly carrying costs (e.g. taxes, mortgage if any, insurance) and under which he puts the utilities in his name (and pays for them), is obligated to maintain the house, and must pay the cost of maintenance. If he fails to pay rent, fails to keep the utilities up, or fails to maintain the home, you could  evict him. You could make it a one-year lease that automatically renews each year unless either side (you or him) gives, say, 60 days notice of non-renewal. This way, as long as he's a good "tenant" you let him stay; and if passes away, chooses to move, or is evicted, you are free to sell the house. (Or you could sell even while he is a tenant--homes with tenants can be sold, and the buyer buys subject to the lease, or can remover the tenant if he/she chooses to live there personally--if required, such as if one or more heirs desparately needs money, such as for medical care.)
Note: New Jersey landlord-tenant law can be tricky: you are advised if you want to do this to retain a NJ landlord-tenant attorney to draft the lease and help with any issues that come up.


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