Dear Liz: My brother and I are nearing our mid-50s. He is married; I am not. Neither of us has children. When our parents died 11 years ago, we inherited their house equally.
I live in it; my brother and his wife live in another state. He and I share taxes, insurance and a home equity loan. Other than that, all expenses are â€” and should be â€” my responsibility. He is livid that I am not leaving him my half of the house when I die, even though he is leaving his half to his wife â€” which I completely understand.
When I realized he was furious about this, I offered to make him the sole beneficiary of the house in my will if he will do the same for me. He will not, yet he remains angry, somehow believing that my being single should restrict my choice of beneficiaries. What am I missing here?
Answer: Once you step back a bit from the spat, you might see that neither of your positions is entirely unreasonable.
A home is typically a major asset, and you want to be able to leave it to a beneficiary of your choosing. So does he, and his wife is the natural choice.
But he’s also probably dreading the idea that you’ll die first and he’ll end up owning the property with someone else. The constant negotiations and decisions required in homeownership can be excruciating and a cause for major conflict even when you have familial ties to bind you. It can be much worse when you don’t.
The other problem with your solution â€” “I’ll leave you mine if you leave me yours” â€” is that you’d need to have a lawyer draw up what’s known as a will contract to make your promises binding, said Los Angeles estate planning attorney Burton Mitchell.
But remember, things change, and your agreement may not seem so good years later.
“The sister could always marry in the future. The brother could always get a divorce. Either could adopt a child,” Mitchell said. “No one should assume that the future is static and the facts won’t change.”
Before you do anything, you should check how your home is currently titled. If you and your brother are joint tenants, then he typically would automatically inherit, regardless of what your will or other estate planning document says.
If you want to leave your share to someone else, you probably would need to hold title as tenants in common.
There are a number of options you might want to consider and discuss. Among them:
- Take out a mortgage and buy him out. This could have financial implications for both of you. You might have trouble making the payments on a new loan, and he probably would owe capital gains tax for half the appreciation since your parents died.But he would get his share of the asset in cash, and you should be relieved of any future recriminations on the beneficiary issue.
- Sell the house and split the proceeds. This means that you’ll have to move and that both of you could have a tax bill. (Because this is your primary residence, you’re allowed to avoid paying tax on up to $250,000 of the gain since your parents died. If your profit is more than that, you will owe capital gains tax on the excess.)But this could solve the issue of who leaves whom what.
- Wait a decade or so and then get a reverse mortgage to buy him out. Reverse mortgages allow you to tap the equity in your home without having to repay the loan until you move, sell the house or die.You can get a lump sum, a line of credit or a stream of monthly checks. The older you are when you apply, the more money you can borrow, although there are limits depending on where you live.
If you’re interested in this possibility, check out the information about reverse mortgages at the AARP website or consult Tom Kelly’s book “The New Reverse Mortgage Formula” (John Wiley & Sons, 2005).
- Do nothing. This is always an option. You should be advised, though, that your brother may have a trump card whether he knows it or not. As a co-owner, he could sell his share of the house or go to court to force a sale of the property. If that’s not an outcome you want, you’ll need to find a solution that works for both of you.