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Post: The Big Move: ‘My brother has done nothing,’ but lays claim to my late father’s home. I’ve lived there since 2016. What should I do?

Dear MarketWatch,

My father died in 2019 without a will in Ohio.

He has property, and a home. I’ve lived on the property and in the home since 2016. Nothing has been filed in probate court.

I’ve been taking care of all funeral costs and debts, maintaining the property, and paying property taxes, on top of filing my father’s last tax return.

My brother has done nothing, except to take multiple items belonging to my father the day after he died. He still takes items when I am not at home. Some of these items don’t even belong to my father.

He also keeps telling me what I can and can’t do with the property.

My father had wishes to make his land a family cemetery to ensure all his kids and grandkids had a place to go.

So my question is: What should I do? Should I file probate papers in court?


Offended in Ohio

The Big Move’ is a MarketWatch column looking at the ins and outs of real estate, from navigating the search for a new home to applying for a mortgage.

Do you have a question about buying or selling a home? Do you want to know where your next move should be? Email Aarthi Swaminathan at TheBigMove@marketwatch.com.

Dear Offended,

Sincere condolences on the passing of your father. 

First things first: You need to set boundaries with your brother.

You’ve been bearing all the expenses — from property taxes to debts — without his support. If you’ve not asked for his help, then please go for it. Ask him to help out. 

But if you’ve asked and he has refused, yet he still swings by to take things from the house, then you’ve got to put your foot down and ask him to stop taking advantage of the situation you’re in.

As to the property that your father left behind:

Unfortunately, you’re out of luck, as Ohio law states that if an individual dies without a will, that property either goes to the spouse, if they’re alive, and if not, it’s distributed evenly between their descendants.

In Ohio, if one dies without a will, the state laws determine who inherits the estate. “Those laws can be unfair,” Geoffrey Kunkler, an estate attorney with the law firm Carlile, Patchen & Murphy in Columbus, Ohio, told MarketWatch, but “they generally leave the estate equally to the closest surviving heirs.”

Even though you’re the one who’s maintained the property and paid for the funeral costs, “the law does not care for who cared for mom, who was estranged, et cetera,” Kunkler explained.

So if it’s just you and your brother who are next-of-kin, you’re likely to be equal beneficiaries of the estate. 

But there is some good news.

You mentioned probate papers.

The job of a probate court, which enters the picture if you file probate papers, is to supervise the “legal process by which all debts, taxes and other financial affairs of people who die in” in an Ohio county “are lawfully resolved” and to make sure that the money or property leftover is distributed fairly to whoever is legally entitled to it. That’s according to the Ohio State Bar Association

If you file with the probate court to be the administrator, then you’ll be in charge of  transferring ownership of the assets your dad owned, which includes the house. And for this hassle, Kunkler said that you may be reimbursed for some of the expenses you’ve borne so far.

The probate court will then go through the process of identifying the heirs, assessing the assets left over, and so on.

While it looks over how the assets are being distributed, there could be in-person hearings, Kunkler advised, especially if there are any big disagreements between you and your brother.

“I would recommend taking care of this sooner rather than later,” he added. “The more time passes and the more she spends, the harder it will be to unravel this mess.” 

Also, one last thing: You should probably start writing a will for yourself, lest your own children be in the same situation down the road.

“It does not matter how large or small the estate is,” Kunkler added, “or if there is a spouse or children. It is equally important for all individuals to have a plan in place.” 

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