Skip to main content
Jack H. Genser

Jack Genser’s Answers

1 total

  • My mother is dying. My father died last year. There is no will. What happens to their house when she dies?

    My sister is living in the house. It is on a reverse mortgage. Her son says he will try to buy it when the time comes. (we are not usre, with today's financial situations, and housing, that he will be able to) What are NYS laws regarding the hou...

    Jack’s Answer

    I am sorry to hear your mother is ill. I know this is a difficult time, having to balance caregiving for your mother and the financial planning for the eventuality. This is certainly when families need sound advice, so they can concentrate on what's truly important at a time when their loved one needs them most. Let's first start with your mother's mental state. Just because mom is terminally ill does not necessarily mean she is incapable of executing a will. Your mother's mental state must be evaluated to determine whether she has the capacity to execute at this stage. Please note that "testamentary capacity" (the mental capacity to sign a will with the understanding of what you are doing) is the lowest form of capacity necessary. This was designed so as not to preclude people for having wills which designate important family decisions. If your mother HAS capacity, it may be advantageous to draft a will which would lay out her wishes for the house and any other assets she may have. If she does not have the ability to do this, then New York laws would control. In NY, inheritance without a will (intestate) would divide your mother's assets equally amongst her children. Your sister would not be in any stronger position than you or your other siblings (if there are) because she lives there. The reverse mortgage only plays into this in determining how much equity would remain in the house after your mom passes. Now, I don't know who has been maintaining the house (taxes, general maintenance, etc), as this may play a role in distribution. There are a number of considerations to examine, so providing specifics without having the entire and complete picture is impossible. I hope the above gives you some understanding of the issues, but know that there may be quite a bit more to consider, discuss and work out once more information is provided to a knowledgeable estate attorney. There may also be elder law issues involved which may impact the various possible scenarios. Please seek the guidance of a reputable estates/elder law attorney in order to properly protect what you can. You can check out some basic estates and elder law information through the links below. I wish you the very best. -- Jack Genser

    Disclaimer: The information posted herein, including comments, opinions, recommendations, answers, analysis, references, referrals or legally related content or information (collectively "Legal Information") is not intended to create an attorney-client relationship between you and any attorney. Such Legal Information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. It is not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely upon such Legal Information. You understand that questions and answers or other postings to the Site are not confidential and are not subject to attorney-client privilege.

    See question