Caring for my mum has left me in limbo

Q&A: As your mum did not leave a will, it leaves you in a very difficult position

I lived with my mother for the last 15 years and, during that time, my mother had dementia. I took over paying all the bills in 2009 and the running of the house. Unfortunately my mother passed away last October with no will in place.

I have seven siblings and six of them have agreed to me buying the house. I can only get a mortgage for €130,000 but I have a sister who has lived abroad for the last 30 years and she is looking for her full share. Myself and my five other siblings looked after our mother. Is my sister entitled to her full share even though she never helped out in any way with our mother?

Mr N.O’B., email

There are an unfortunate number of these very sad cases that come across my desk, people who have put their lives on hold to care for family or loved ones only to lose out when they eventually die.

The biggest problem here is the lack of a will. That’s not to say that the existence of a will would automatically have prevented the situation you now find yourself in, or that it would have guaranteed a successful challenge, but at least you could have considered the legal route.

But there is no will and that means your mother's estate is allocated on the basis of the rules of intestacy. The issue here is that there is no recourse to legal challenge under intestacy.

No matter how unfair it may seem, the rules of intestacy set down that, in a situation where there is no spouse and there are children, those children share equally in the estate of the person who has died.

This means that not only is your sister fully entitled to one-seventh of your mother’s estate, she is legally obliged to get it. The fact that she never raised a hand to help her mother is immaterial.

Home purchase

The same applies to your other siblings and this could have implications for you even if you could persuade the sister living abroad to row in with the family plan to allow you purchase the family home.

I am assuming from the assertion that this sister wants her “full share” that we are talking about her getting the full payment she is due from the estate. That suggests your other siblings are agreeable to you purchasing the family home at a discount to reflect the circumstances and the fact that you are limited in the mortgage you can raise.

But, in law, these siblings are also entitled, under intestacy, to their full share of the estate. If they choose to allow you to buy them out at a discount to the market value of the property, then they are effectively making a financial gift to you in tax terms.

You are only allowed to receive gifts from siblings – and others defined under category B of the capital acquisitions tax regimes, such as uncles, aunts and grandparents – up to a maximum of €32,500 over your lifetime. If your siblings are allowing you to buy their shares of this property from them at a discount and that discount comes to more than €32,500 between them, then you face a tax charge of 33 per cent of anything in excess of that sum.

If, on the other hand, your sister living abroad simply wants to retain her one-seventh ownership in the property, you should be able to acquire the other 6/7ths. It’s a little cumbersome and banks are not overly fond of such arrangements – largely because it muddies the water in terms of access to the security under any mortgage they give you should you default – but it should still be doable.

Writing a will

The whole situation illustrates once again why it is so important that people do not leave it too late to write a will.

You were caring for your mother for many years and it is not uncommon for carers to be recognised in a will – especially where they do not have another property and where siblings have homes and have had the freedom to pursue their lives and careers while the carer put their future on hold.

Indeed, if you were effectively left homeless having cared for a parent over such an extended time, you would have had a case for challenging a will on the grounds you were not reasonably provided for. Such cases are not easy ones to win but you sound like you might have had a reasonable case.

However, without a will to challenge, your hands are tied by intestacy. And once dementia took hold, your mother would never have been in a position to write a will as she would not have been considered to be able to fully understand what she was doing.

Conversations about inheritance are difficult at the best of times, but clarity is not unreasonable when a person is being asked to take on the role of live-in carer over an extended period – 15 years in your case.

This is not to be confused with elder abuse where vulnerable older people are pressured into writing or adjusting wills under undue pressure. Your mother was fully entitled to leave her estate to whomever she wished but, if you were committing to long-term care, you were reasonably entitled (a) to know a will had actually been drawn up and (b) whether provision was or was not being made for you in recognition of your role. If it wasn’t, that is fine, and certainly the older person’s choice; however, you also have the choice then to determine you cannot afford to mortgage your life to be left in penury.

One final thing. You say you took over paying the bills in your mother’s home. If this was from her funds fine; if not, however, you might have a claim against the estate before it is divided among the family. The fact that you were living there at the time does complicate matters but nothing in this situation – apart from the rules of intestacy – is clear.