In October, my father passed. His will left his home to myself and brother but we were told my minor half sister is also by law a share holder. Now, my brother is in grave medical condition. His personal affairs are in a very bad state (he was trying to get a loan mod on his home) and he is deeply in debt. I am concerned that if he were to pass intestate, that a court appointed executor could force the sale of my father's home (where I am currently living) to pay his debts. Should he ultimately recover, if he were to sell his home and come to live with me, would the proceeds of the sale of his house be taken from him to pay his medical bills from this hospitalization?
Contracts / Agreements Lawyer
This is a very complicated situation that cannot be analyzed on AVVO. However, presuming that your brother manages to save his own home, meaning he gets a loan modification, Homestead will prevent a lien from being executed against it. Fortunately, Homestead also protects the proceeds of the sale as long as they are put into a bank account, and your brother intends to buy another Homestead property. As far as his interest in the other home, it most likely does not qualify as a Homestead. In my opinon, the best course of action is to speak with a estate planning/asset protection attorney, there are many different strategies which can be taken.
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Estate Planning Attorney
Your question raises numerous legal issues and it is not possible to adequately address all of them in this forum. First, did you probate your father's will, was it admitted to probate and properly administered, and an order entered determining the property to have been your father's homestead, properly devised to his children, and vesting in the three of you the title to it? If so, and if your sister is a minor, you all own it as tenants in common, meaning each of you own an undivided one third intereest in the whole. The minor's interest should be protected by her natural parents, who are her natural guardians and frankly, they should be asking you to sell the home so they can invest the money generated from such a sale, when the minor received her share, for that minor child. And although any of the tenants in common has a right to occupy the home, as a practical matter, if you are the one exclusively occupying it, there is no income coming in from the rental of the home on the market to the other two tenants. Until the parents open a guardianship of the property for their minor child, there is no one officially authorized to pursue a partition of the property either, which is a petition asking the court to force the sale of the property so its value can be fairly divided between the three owners. Now in regatrd to your brother's medical condition, if the hospital were to sue him and get a judgment, or if he died and the hospital or other medical service providers file claims against his estate for amounts due, which are not challenged, then it is possible the personal representative of his estate may need to liquidate his assets to raise money to pay claims. His one third interest in your father's house is not exempt from such claims as it is not your brother's homestead since he is not yet living there. If he were to come live there, then it would be his homestad and yours, as to a total of two thirds interest in the home, which would make it difficult for third parties to force the sale of it, but it would not be impossible, though it might be impractical in some respects, since the marketability of an undivided interest in a home is not good. If your brother has not already done so, if he qualifies for Medicaid coverage, he should get such coverage as soon as possible so his medical bills would have some possible coverage. Your question should really be addressed in an office conference setting with an attorney as it is a multi-issue question and you are asking for answers for not only yourself but your brother, all in one question.
This answer is offered by a member of the Fla. Bar, and the response is based solely upon the factual scenario framed by the inquiry in the question. Such questions often omit important facts which could dramatically affect the answer the responding attorney would provide, had additional facts and further information been made available by the writer of the question. It is always advisable to engage in a more thorough, conference type of setting when seeking definitive legal advice as it is impossible for any attorney to fully address all of the possible issues, or to outline all possible defenses, or fully explore all angles of a legal question in this limited format setting. This attorney's response to the question in no way creates an attorney-client relationship with the writer of the initial question.