Legal Question in Wills and Trusts in North Carolina

My mother stated in her will that 1/2 the value of her house will be given to me and 1/2 the value of her house will be given to my brother. There is a $60,000 loan on the house that my brother and I are supposed to be splitting the monthly payments on. The loan is in my name due to my brother's bad credit. My brother has stopped making his share of the monthly payments and refuses to pay anything more. When my mother passes away and her will is settled, can I reduce the value of my brother's share of the house by the amount he failed to pay towards the outstanding loan?

Asked on 7/02/14, 9:41 am

2 Answers from Attorneys

Jeremy Canipe The Canipe Law Firm, PLLC

Thanks for your question. Keeping in mind that I have not had the opportunity to review the will, and I am here assuming that your mother is still living, unmarried, and that what you are talking about is what you understand her will is going to provide (unless she changes the will prior to her passing), then the short answer is no. That your brother did not comply with your separate agreement has no impact. Of course your mother has the right to change her will to take into account these matters.

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Answered on 7/02/14, 9:49 am

I agree with Attorney Canipe but there are a few questions here. How is it that a loan is in your name and your mother own the real property? Is this some kind of personal loan to you or is the loan secured by the real property somehow? Its not possible to loan someone money and have the loan secured by property that they do not actually own so if this is a mortgage, is your name on the deed?

If this is somehow a personal loan, why does your mother not just add you to the deed now with right of survivorship?

Unless there is some written agreement then your brother need not comply by paying half the loan and you cannot just arbitrarily change the terms of your mother's will upon her death to reimburse yourself.

As suggested by Attorney Canipe, your mother is free to make other arrangements regarding the house and indicate that your brother does not get the house at all or that he can only have 1/2 minus his reimbursement for his share of the loan. Your mother is free to change her will, provided that she is mentally competent to do so, at any time before her death.

There are many possibilities here and I think your mother, if she is still mentally competent, needs to sit down with an experienced estate planning attorney to make some adjustments to her will.

If there is some kind of promissory note signed by your brother, that is a different matter. If that is the case, you could pursue legal action against him for non-payment and if you recovered a judgment then you could exercise it against your brother and, if your mother passes away, against your brother's share of your mother's estate. My guess though is that you have nothing in writing but verbal promises of your brother and if that is all you have, then your mother needs to change her will now and leave your brother no part of the house unless he reimburses you for his share of the loan. Frankly, if I were you, I would not want to own any part of real estate jointly with brother so your mother needs to make other arrangements and leave the house to you.

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Answered on 7/02/14, 2:41 pm

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