Q: My mom passed away with no will. My brother was living with her at the time of her death. I asked him if I could move in
Are we allowed to live in the house while dealing with probate? If we are do we continue to pay the mortgage payment as it is? Or do we have to pay fair Market value rent for the house to remain living in it until it's sold to close out the estate?
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A:
If the mortgage payments do not get paid in a timely manner by someone, the lender will have the right to foreclose and all heirs lose their equity in the home.
If you and your brother are the sole heirs and the home does not need to be sold to pay your mother’s debts, you each have equal rights of occupancy AND equal obligations to pay carrying costs such as mortgage, taxes, insurance, maintenance.
If your brother prevents you from moving in then he is obligated to pay fair market rental to the estate (pre-distribution) or to you for your half (post-distribution). The estate is then responsible for paying expenses. After distribution you are equally responsible for paying expenses but of course you would have the benefit of rent receipts to assist with that.
The accountings and tax consequences start to get rather tiresome such that ultimately the ideal outcome is sale by both of you or sale by one to the other.
If you are planning on selling then moving in seems to be a waste of time unless your sole motivation is to make repairs or prevent waste.
You should hire a probate attorney to assist with the process of retitling the house so that you can eventually sell it. The attorney can also help with a proper accounting between the two of you.
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