My mother's plan to leave her house to my sister and I could create more problems than solutions

Irish Times

2 days ago

My mother's will currently leaves her home equally to my sister and I. My mother has minimal alternative assets. My sister lives with my mum.
I am wondering if the home is left jointly to myself and my sister and my sister buys me out, will she be liable for
CAT
on her portion of the inheritance?
it is unlikely for my sister to be able to raise the funds to cover the market value of 50 per cent of the
property
.
Although I myself have a sizeable mortgage and significant dependents, it is not in my interest to see my sister and her children
homeless
. Furthermore I have doubts on how practical it would be for my sister to vacate the property if it was needed to be sold to execute the will.
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I am concerned that I end up with a large liability from an asset that, in reality, I have no access to or ability to sell.
Is it possible to say during the probate period that I don't want 50 per cent of the property, can I just have 25 per cent, and if so what are the tax implications?
Ms BW
Families are complicated things – deeply intertwined, generally emotionally interdependent and, for all the familiarity, inevitably unique one from the other in subtle ways.
And that's very much how it is here. Your mother's home is more or less the sum total of what she will leave behind and she is understandably keen that it should be shared between her two children.
The fact that your sister lives there with her own family is, somewhat depressingly, no longer as unusual as we would like to think it should be. Bad luck in love, in business or in life means many of us are not as independent as we would have expected to be well into our adult lives.
But it does certainly complicate things.
There seem to be two distinct issues here – the initial inheritance and then how you two can find a workable solution.
As of now, a person can receive an inheritance of up to €400,000 from their parents. Assuming neither of you inherited from your father or benefited from a valuable financial or other gift – something over the value of €3,000 in any one year – then you have the full inheritance tax-free limit to play with.
So, as long as your mother's property is not worth more than €800,000, there should be no question of capital acquisitions tax (CAT), better known as inheritance tax, for either of you.
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If it is worth more than that, however, then you will have a tax liability – 33 per cent of anything above your personal limit. So if the property is worth, say, €950,000, your half share would be worth €475,000. You would pay 33 per cent tax on the €75,000 of value above your tax-free threshold – a bill of €24,750 each.
Unless you both have ready access to that sort of cash, then you would be looking at having to sell the property and paying the tax owed. Your sister would have a net €450,000 to go and find a home thereafter and you would have your inheritance in cash of the same amount with no further tax owing on it.
But let's assume the property is worth less than €800,000. What then?
In simple terms, congratulations, you are joint owners of your mother's house.
If you simply retain your interest in the house as an asset, there is no issue. When it is eventually sold, you will receive half the proceeds and your only 'liability' will be that any increase in value over the time you inherited it will be subject to capital gains tax – again at 33 per cent.
There would need to be agreement between you and your sister, preferably in writing, that any running costs, regular maintenance, utility bills, local property tax etc would be met by her as they are her living costs, not yours.
But what if your own financial circumstances dictate that you really need to get access to your inheritance or some of it?
You say your sister would most likely not qualify for a mortgage to buy out your half: perhaps she could buy out a smaller portion, leaving you with reduced ownership of the property and some cash in hand.
That would not leave her with any tax issues apart from a modest stamp duty bill. And, as it will be her family home, there will be no tax issues when she eventually sells it either.
You could agree a staged purchase of your share over an extended period to make it more affordable to her. That would complicate things for you as each stage could trigger a capital gains charge if the gain on the portion being sold was greater than €1,270 in any one year. And there would also be stamp duty implications.
Or you could agree to sell the house provided your sister is happy that her share of the sale proceeds would allow her to buy a home elsewhere or the wherewithal to raise a mortgage on a smaller home. How practical that is really depends on how much value there is in this current family home.
In a world where you, understandably, do not want your sister and her family homeless, the realistic options are to sit on your inheritance and consider it an invested asset, get your sister to buy a portion of your share or agree to sell the property and use the proceeds for her to start again.
You say your mother's 'current will'. I am assuming then that she is still alive. If this looks like becoming an intractable mess but you think your sister could raise enough to buy you out of a quarter share – and you are content that the inheritance will be lopsided according to your respective needs – you can always see if your mother is open to adjusting her will. Obviously, the choice is hers.
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Can such cases end up in legal dispute? Yes, they can where one side wants to sell and the other refuses. But, really, the only winners in that scenario are the lawyers.
Finally, on your suggestion that you might just say during probate that you only want a quarter of the house, not a half, I'm afraid that won't work. It is possible to 'disclaim' an inheritance – ie, say that you do not want it – but you cannot disclaim and then try to rewrite the will to say I don't want all of this, just some of this or a bit of that.
If it is a bequest – ie, half the property has specifically been left to you by name – and you disclaim, it falls into the residue of the will. Now, it could be that you are one of the benefits of the residue, in which case you might have to disclaim again.
Disclaiming a bequest and/or the residue would not prevent you accepting any other specific bequest that was made in your favour – such as for a favoured piece of art or jewellery, for instance. But it would rule you out of any benefit from any of the residue – including any of the house your mother intended to leave you half of.
You cannot say, for instance, I would like only a quarter and not a half.
There is one way this could work for you, depending on how your mother's will is worded.
As it is, you and your sister are getting 50 per cent each of the house. Assuming that is by bequest, you can disclaim the bequest. Your share then falls into the residue – assuming there is a residuary clause in the will. There really should be in every will, if only to account for forgotten assets, but it is not always the case.
Anyway, assuming there is a residue and it is again split evenly between you and your sister, she will get half of your half, leaving you with 25 per cent ownership.
In terms of tax implications, whether it is a quarter or a half will have no effect as long as the value of what you receive is under €400,000. However, if this arrangement meant your sister got 75 per cent of the house and that portion was valued at more than €400,000, she would face a bill of 33 per cent of everything above that figure.
That could, of course, force her to sell the house anyway which would defeat the object of the exercise. So you really do need to think this through carefully, and ideally get professional advice. The one thing you don't want is this gift from your mum leading to family discord.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to
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with a contact phone number. This column is a reader service and is not intended to replace professional advice