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San Antonio Express-News MySA.com
Copyright 2012, Paul Premack
May 28, 2012

Can Caretaker/Child get larger share of estate?

Dear Mr. Premack: My mother died last year. I took care of her till she died. Not one of my brothers or sisters helped. I was living in mother’s house, paying her bills on my own. The house is left to all her children. Do I have more entitlement to the house and am I able to claim ownership of the house? - MLG

Dear Mr. Premack: My father died, and left no will. I, his son, was the caregiver since mother died years ago. He acquired 20 acres with a veteran loan. I paid all the loan installments, taxes and credit insurance. I also made payments on a mobile home that sat on one of the acres. How do I now claim my rights to the acres and mobile home? My sister had hired a lawyer to fight me, but has now left town and I do not know how to reach her. – SCG

Note the common themes in both of these questions: 1) a loving family member sacrifices time and money to care for a parent, 2) the parent takes no action to honor or reimburse the caretaker for the time or money spent, 3) the siblings are not involved in the care or expenses, and 4) the siblings expect their share of parent’s remaining assets.

The parent was ultimately responsible and ultimately in control. The outcome depends on how and whether the parent exercised that responsibility and control.

In the first case (MLG) mother had a Will which leaves all assets to all the children. That was her right; that was her decision. Consequently, MLG has no right to claim ownership of the house; rather, it is shared by all the siblings because that was mother’s Will. You might ask whether mother should have recognized MLG’s contribution and should have changed her Will. Only mother could have answered that question, and in fact did not change her Will. If she was of sound mind, it would have been kind of her to recognize MLG’s efforts but it was not legally required.

In the second case (SCG) father did not have a Will, so the state’s laws of intestacy control distribution of the land and mobile home. Father made no choices for himself; he ignored his obligation to be responsible and his power to be in control. Consequently, all of the children inherit equal shares of the acreage and mobile home. If father had been of sound mind, it would have been kind of him to recognized SCG’s contribution of time and money, but it was not legally required.

Since both parents accepted this help from the responsible child, is there nothing the child can do to be compensated for the time and money spent? Texas law is not entirely clear. For instance, it is clear under the Medicaid regulations (which are Texas public policy) that when a child contributes time and effort to care for the parent, there is no implied agreement between them that the child will be paid or reimbursed. When the child spends money to help support the parent, it is considered a gift (with no expectation of being reimbursed) unless the child and parent signed a binding promissory note (making the transaction a loan instead of a gift). On the other hand, it may be possible for the child to claim “quantum meruit” (that the contributions toward the parent’s care were just and that the child merits reimbursement). Do you now want to spend more time and more money bringing a questionable claim in court?

Both MLG and SCG failed to protect themselves, as much as their parent failed to take action to protect them. They could have told their mother and father, respectively, that the money spent on bills and payments was a loan to be paid back at a later date. Failing to do so, their siblings can take the position that MLG and SCG were just being “better children” by supporting the parent with gifts. If you find yourself in a similar situation, talk to your parent and talk to your siblings about the time and money you are expending. See a lawyer to help work out a proper Will and other legal documents that make everyone’s expectations clear and binding up front, and then you won’t be floundering like MLG and SCG when your parent dies or stops needing your assistance.

P.S. – SCG, your sister hired an attorney. Contact her through the attorney’s office.

Prior Week: How can non-traditional couples use legal powers spouses have?
Next Week: Does son who died shortly after mother still inherit?

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.