My brother purchased a home with a friend who has since passed…

Question

My brother purchased a home with a friend who has since passed away (Will be 3
years next Aug). No one has taken over his estate, and apparently all the family
needs to do is to write a letter to hand the house over to my brother (but they
have been unwilling to do so - do not understand the reason). My brother hired a
lawyer but so far all that she has been able to do is to write to the family
asking that they write this letter. Are there any other steps he can take in
order to have the house under his name alone? (He has been making the full
mortgage payment since his friend passed away; they both put a downpayment on
the house when it was initially purchased, and the house has decreased in value
since the initial purchase. Also his friend did not have any assets, he would
have had debt)

Debra · Accepted Answer

Debra Thal (username) :

Did they hold the house as joint tenants or tenants-in-common.

Customer:

tenants in common

Debra Thal (username) :

So his half of the house vested in the estate and title did not vest in your
brother.

Customer:

that is correct

Debra Thal (username) :

So the reason they are not signing off is they likely want to be bought out.

Debra Thal (username) :

They are hoping to make some money off this.

Customer:

Is there any way my family can become executor?

Debra Thal (username) :

And if there are creditors they cannot just sign off as the creditors could come
after them.

Debra Thal (username) :

Was there a Will?

Customer:

no will

Debra Thal (username) :

Usually the next of kin applies to administer the estate.

Debra Thal (username) :

If they do not oppose one of you applying that could work.

Debra Thal (username) :

But if there are creditors you will not be able to sign off on the house either.

Debra Thal (username) :

The creditors would go after the administrator personally.

Debra Thal (username) :

This asset forms part of the estate and the estate cannot give out the asset to
your brother unless all debts are paid and all taxes are paid as ewll.

Debra Thal (username) :

well.

Debra Thal (username) :

But your brother can make a claim to the estate.

Debra Thal (username) :

He would have to show that he is entitled to all or part of the interest in the
house.

Debra Thal (username) :

He could do that by showing he contributed to the value of that half of the
house.

Customer:

The mortgage on the house is higher than what the house is worth - does that
make a difference? No assets.

Debra Thal (username) :

The claim would be based on trust principles and he would have to show
essentially that the estate would be unjustly enriched otherweise.

Debra Thal (username) :

It does make a difference.

Debra Thal (username) :

But it's not just something the family can sign off of.

Debra Thal (username) :

This is why they are not.

Debra Thal (username) :

They would likely expose themselves to liability.

Debra Thal (username) :

Your brother may need to get a Court Order.

Customer:

Can the estate be left in limbo indefinitely?

Debra Thal (username) :

Yes

Debra Thal (username) :

If there is no Will and not assets then there is no reason for anyone to want to
administer the estate, except your brother.

Debra Thal (username) :

It is a real mess.

Customer:

So there is no point in my brother continuing to pay the mortgage?

Debra Thal (username) :

Your brother is in a difficult position and he cannot let this continue as the
house will start to be worth something.

Debra Thal (username) :

Yes there is

Debra Thal (username) :

He wants the house.

Debra Thal (username) :

And if the mortgage is higher than the equity he would be sued for the
difference.

Debra Thal (username) :

He needs to have the lawyer seek a Court Order.

Debra Thal (username) :

The lawyer can go bring a motion for direction and have a Judge determine what
should be done if no one is administering the estate.

Customer:

I am not sure I fully understand the court order - could you please provide
detail? So that I can explain to him...

Customer:

I just read your last statement and I believe that clarifies. The one statement
I don't really understand is this one;

Customer:

﻿" The claim would be based on trust principles and he would have to show that
the estate would be unjustly enriched otherwise"

Debra Thal (username) :

Here is a more common example.

Debra Thal (username) :

Let's say there are common law spouses.

Debra Thal (username) :

They live together in a province that does not give them property rights. They
would only get that if they were legally married.

Debra Thal (username) :

The house is in one of their names only.

Debra Thal (username) :

And they live together for 20 years.

Debra Thal (username) :

And the spouse whose name is XXXXX XXXXX title, paid the mortgage all these
years and paid for renovations.

Debra Thal (username) :

Then the relationship breaksdown.

Debra Thal (username) :

Does the spouse on title get 100% of the house?

Debra Thal (username) :

If the other spouse can show that he contributed to the value of the house then
he will argue that his spouse held the title in trust for him as well and that
he is entitled to an interest in the house.

Debra Thal (username) :

So in this case, your brother can say that while estate now holds the title to
half the house it is not entitled to keep it.

Debra Thal (username) :

That is because it has no value aside from what your brother is now contributing
to it.

Debra Thal (username) :

The problem is in showing that there is no equity in the house at all.

Debra Thal (username) :

If that can be shown then anyone who agrees to administer the estate will be OK.

Debra Thal (username) :

They can say that they signed off as they were essentially signing off on a
debt.

Debra Thal (username) :

But it has to be very clear that this is the case.

Debra Thal (username) :

If not a creditor is going to blame them and go after them.

Customer:

You have been extremely helpful - thank you. Do you have any idea of the cost
that may be incurred in attempting the court order etc?

Debra Thal (username) :

It will not be cheap.

Debra Thal (username) :

But I would first suggest the lawyer bring a motion for direction from the
Judge.

Debra Thal (username) :

It may be that no order will be required after that.

Debra Thal (username) :

Your brother should be using an estate lawyer that does litigation.

Customer:

Is there any way to have the costs for processing this directed to the estate?

Debra Thal (username) :

Not likely in a case like this and you are saying there is no estate anyway.

Debra Thal (username) :

So who would pay him back if there are no assets?

Customer:

Figured that but thought I would ask... he does not have a lot of money.

Debra Thal (username) :

I understand.

Debra Thal (username) :

It is a difficult situation as I said earlier.

Customer:

Any recommendations for litigation lawyers in Calgary?

Debra Thal (username) :

Sorry. The chat is having a bit of trouble and I keep losing your posts/

Debra Thal (username) :

I am in Ontario but he can contact the Law Society and use their Lawyer Referral
Service. He will be given the name of a lawyer and can consult with the lawyer
and the first half hour will be free.

Debra Thal (username) :

The number is:

Debra Thal (username) :

403-228-1722 in Calgary

Customer:

Thank you so much for your time.

My brother purchased a home with a friend who has since passed…

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