When parents die suddenly without a will, in this case due to COVID-19, surviving family members are placed in an awkward, expensive, and emotionally fraught situation. The article titled “My parents died of COVID-19 and left no will. My brother lives rent-free in their home and borrowed $35,000. What now?” from MarketWatch sums up the situation, but the answer is complicated.
When there is no will, or “intestacy,” there aren’t a lot of choices.
The example in the article stated that the homeowners had a few bank accounts, owned their home outright and left no debts. They had six adult children, including one that died and was survived by two living sons. None of the siblings agree upon anything related to their parents estate.
One of the siblings was living in the house rent free. Another brother was loaned $35,000 for a down payment on a mobile home. He claimed that the loan was a gift and he does not have to pay it back. There are receipts, but the money was paid directly to the escrow company from the mother’s bank account.
How do you determine if this brother received a loan or a gift? What do you do about the brother who lives rent-free in the family home? How does the family now move the estate into probate without losing the house and the bank accounts, while maintaining a sense of family?
For starters, an administrator needs to be appointed to begin the probate process and act as a mediator among the siblings. In some states, the administrator also requires a family tree, so they can know who the descendants are. Barring some huge change of heart among the siblings, this is the only option.
If the parents failed to name a personal representative and the siblings cannot agree on who should serve, an estate administration lawyer is the sensible choice. The court may name someone, if there is concern about possible conflicts of interests or the rights of creditors or other beneficiaries.
A warning to all concerned about how the appointment of an administrator works, or sometimes, does not work. Working with an estate planning attorney that the siblings can agree upon is better, as the attorney has a fiduciary and ethical obligation to the estate. While state laws usually hold the administrator responsible to the standard of care of a “reasonable, prudent” individual, not all will agree what is reasonable and prudent.
One note about the loan/gift: if the mother helped a brother to qualify for a mortgage, it is possible that a “Gift Letter” was created to satisfy the bank or the resident’s association. Assuming this was not a notarized loan agreement, the administrator may rule that the $35,000 was a gift. Personal loans should always be recorded in a notarized agreement.
This family’s disaster serves as a good lesson for anyone who does not yet have an estate plan and doesn’t want to die without a will. Siblings rarely agree, and a properly prepared estate plan protects more than your assets. It also protects your children from losing each other in a fight over your property. Contact our office today to schedule a complimentary initial consultation.
Reference: MarketWatch (April 4, 2021) “My parents died of COVID-19 and left no will. My brother lives rent-free in their home and borrowed $35,000. What now?”
