Cape Coral, FL asked in Estate Planning, Real Estate Law and Probate for New York

Q: Are my sister & her husband obligated to share the proceeds of the sale of my late mother's home in New York State?

My elderly mother sold her house in 2019 to move a few miles so she'd be closer to my sister. My brother in law (a CPA) put the proceeds from the sale (>$100K) in a bank account in my nephew's name to hide the $ from the govt in case Mom went into a nursing home. He then bought a house near he & my sister, taking out a mortgage on it which was also in my nephew's name (nephew knew & agreed) where Mom lived until she passed away recently. Mom died intestate. My brother in law is now saying that A - the house belongs to them because it was in their names (ostensibly to protect it in case of Mom going into a home) and that they have no intentions of selling it, and B - that they are not obligated to give my brother & I one red cent of the money from the sale of Mom's original home. My brother in law says my brother & I should simply split Mom's savings account (<$20K). To clarify, Mom was a widow with 3 adult children. Is this legal?

2 Lawyer Answers
Michael David Siegel
Michael David Siegel
  • Probate Lawyer
  • New York, NY
  • Licensed in New York

A: It is legal. In fact, without you undertaking expensive and likely unsuccessful litigation, it is the way it is supposed to be. The recorded documents say what they say.

Carl Nelson
Carl Nelson

A: In the absence of some agreement regarding the proceeds of the sale of your mother's house, I generally agree with attorney Siegel. Based upon the fact pattern you described, your brother's house is your brother's house and your mother having lived there does not make it hers nor make his house part of her estate. The facts are not totally clear from your question, but it appears that when she sold her house, she gave the proceeds to your nephew. That was a transfer made during her lifetime and while it may, for example, have been subject to gift tax, assuming again there was no fraud, etc., thouse proceeds presumably became your newphew's property and would also not be part of her estate. Again, perhaps there was some agreement as to those proceeds, but none is apparent from your question.

As with most legal questions involving specific facts, it may not hurt to consult with an attorney who can more properly review the complete fact pattern and provide you with legal advice.

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