My Mother died and left no will or power of attonery. She left a mortgaged home and property.

Asked over 3 years ago - Ocala, FL

I live in Florida and have 2 other brothrs. The youngest was living with our Mother until she died and is still living in the house. He has laid claim to it and will not me or the brother in the house. Where do we stand to get our Mother's business taken care of. The house has a large mortgage and Bank Of America has sent a paper asking about continuing the loan. The brother living in the home wants to live there rent free. There was no insurance on the house to cover the loan.
Where do I and my other brother stand. We want to get in the house to get things taken out of there before foreclosure but the brother living there will not let us in.

Attorney answers (4)

  1. Debra G Simms


    Contributor Level 11

    Answered . Did your mother live in Florida when she died? In Florida, her house would pass to her children equally if there is no will (unless she was married when she died). You will need to hire a Florida attorney to file a probate action so you can deal with the bank or sell the house.

    Please call me for further assistance.

    Debra G. Simms

  2. Joseph Franklin Pippen Jr.


    Contributor Level 20

    Answered . Assuming the house is in Florida-get Florida attorney to open probate estate.
    Two siblings can approve for one to serve as personal representative of estate.
    Once appointed-can legally deal with getting brother to pay rent or leave.

  3. Joseph Warren Cannon Boyles

    Contributor Level 10

    Answered . I agree with Mr. Thomas that you need an attorney. You will need to open up a Probate estate and a Florida attorney can help you with that.

    If your mother died without a will, her property will most likely be divided up equally between you and your brothers. One of you will likely be appointed to gather together the property and distribute it, and that may involve securing the homestead.

    If the 3 of you cannot figure out a way to pay off the mortgage, it may be best to sell the property after the estate administration is over. Hopefully everyone will agree at that point, because losing the house to foreclosure would be a shame.

    Good luck.

    Joseph W. C. Boyles
    Boyles & Boyles, PLLC
    Attorneys and Counselors at Law
    212 West Cervantes Street
    Pensacola, Fl 32501
    Telephone (850) 433-9225
    Fax (850) 434-7898

  4. James Brian Thomas

    Contributor Level 14


    Lawyer agrees

    Answered . The short answer is, you're going to need an attorney. What you've described is hardly uncommon, but it isn't the kind of thing that you can fix or address by yourself. When a person dies without a Will, we call it dying intestate. In Texas, as I'm sure is the case in Florida, intestate estates are divided among a decedent's heirs according to statute. I obviously can't tell you how it works in Florida, but odds are that you and your siblings are probably treated equally.

    This leaves you with several problems that an attorney can assist you with.
    1. The value of occupying the house is worth something. How do you secure your right to 1/3 rent from your younger brother?

    2. The items in the home are sentimental to you if not valuable in their own right. How do you get in to divide them up?

    3. Your mother's creditor (Bank of America) will eventually step up and kick your brother out if you do not address the issue of the mortgage. How do you save the house, if you can?

    All three of these issues can be addressed by a local attorney that practices probate. An estate administration may be required, or an attorney may simply be able to give you some muscle trying to negotiate with your younger brother. Sadly, this is not a self-help situation. If the items in the home and the house itself are worth it to you, sit down with an attorney.

    Disclaimer: This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant Texas. This answer is based on general principles of law that may or may not relate to your specific situation. You should not rely on this answer alone and nothing in these communications creates an attorney client relationship.

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