Will I inherit my sister-in-law’s share of the family home?

QuestionMy husband inherited part of his family home, along with his sister and brother. His sister has the right to live there. She has a disability and is older than them. It is likely that she will either go into residential care or will pass away before her brothers do.In her will, she gives money to her nieces, nephews and to a couple of charities and friends. The rest goes to her two brothers and me. What happens to her share of the house if she moves into residential care or if she dies before me or her two brothers?READ MOREAnswerThe three siblings have been left the house as “tenants in common”, the will says. This means each owns an equal one-third share, says Helen Ferguson, solicitor and partner in the private client department at Mason Hayes & Curran. This differs from “joint ownership”, where if one of the siblings were to die, their share would automatically pass to the other two – and so forth, to one owner. “As these siblings are tenants in common, as and when each of them dies, their one-third share passes to their estate, not to the other surviving owners,” says Ferguson.The will says the sister has the right to live in the property for life. But this wording is a bit redundant, says Ferguson. It is probably more of an expression of the parents’ wish for how things would go, she says.“If you own a property as a tenant in common, you have an automatic right to live there for your period of ownership anyway,” says Ferguson. “So, any one of the three of them has the right to live there, actually. “What the will doesn’t say is that the sister has an ‘exclusive right’ to live there. That would mean she had a ‘life interest’ which would postpone the legal ownership of her brothers,” says Ferguson.“Because it doesn’t say ‘exclusive’, the other two have an equal right to live there if they want.”This doesn’t mean that a nephew could just move into the property, for example.“He is not an owner. I think that would need the consent of the other co-owners,” says Ferguson.So, what happens to the house if the sister goes into residential care? The three siblings could agree to rent it out, with any profits split in three equal shares. Or the three could agree that a family member moves in as a caretaker. Alternatively, if the three of them agree to it, the house could be sold.There are some important things for the siblings to consider sooner rather than later. “If one of them was to lose their mental capacity to make decisions, then you have a problem because you have a co-owner who cannot sign a contract or take a decision,” says Ferguson.If there are concerns about the older sister, for example, and she still has mental capacity, talk to her about enduring power of attorney, Ferguson advises. This is a legal document set up while you have full mental capacity to choose someone you trust, called your attorney, to manage your financial, property and/or personal affairs should you ever lose the capacity to do so yourself in the future. “If she does that, then she has appointed someone in her place to sell the property, if they all decide that is the right thing to do,” says Ferguson.If she did lose mental capacity and money was needed to pay for her residential care, for example, but an enduring power of attorney had not been arranged, her brothers would have to apply to court for a decision-making representative to be appointed for her.Getting an enduring power of attorney in place now will be less time-consuming and expensive. If the sister were to die before her brothers, her one-third share goes into her estate, to be administered in accordance with her will.“If she has enough cash to pay the legacies she has made to the nieces, nephews, friends and charities mentioned in her will, then her share of the house would form part of the residue of her estate,” says Ferguson.This residue is the part the sister says she wants to go to her brothers and sister-in-law. But money left as a legacy in a will takes priority over anything left in the residue – legacies get paid first. So, if she didn’t have enough cash to pay the legacies, then eventually her one-third share of the house would have to be sold to fund the legacies, says Ferguson.“The legacies have to be paid at some stage, and the executors won’t want to wait until everyone on the property title has died. “The executors will look for agreement from the owners to sell the property to pay the legacies, or if the brothers wanted to keep the property, then they would have to fund those legacies.”If the sister dies, will her sister-in-law, the reader, inherit her one-third share of the property?Not exactly, says Ferguson.“If the sister specifically left her share of the house to her sister-in-law, then that would take priority over the money legacies, but if she doesn’t, then whatever cash is there would first be used to pay the legacies and expenses,” says Ferguson.If the reader’s husband dies, leaving everything to her in his will, then the reader will inherit his one-third share of the house. If he dies without a will, then two-thirds of his estate, including the house, would go to his wife and one-third to his children.The name of the reader who submitted the question is not being published to protect the identities of those involved.Please send your legal queries to Joanne Hunt, Ask the Lawyer, The Irish Times, 24-28 Tara Street, Dublin 2, or by email to joanne.hunt@irishtimes.com with a contact phone number. This column is a reader service and is not intended to replace professional advice.