Q. Both my parents are in their 60s, still working and their mortgage is paid off. My brother, in his 30s, lives with them. He is going through a bit of a rough patch, not working and with no savings. I now have a family of my own and a mortgage. When my parents eventually pass, I would hate if my brother ended up homeless. Ideally, he could reside in the family home, which is currently valued at €475,000. My parents don’t have a will and I’m afraid he could be in difficulty if we are forced to sell the property.A. The reader’s hope to secure accommodation for his brother is well-intended, but it could come with risks, says solicitor Niamh Moran of Carmody Moran Solicitors.What strikes her is everyone’s age. The parents may live for at least another 20 years, during which time their son may have pulled himself out of his current rough patch. Giving a right of residence to the brother presupposes that at some stage, the reader himself isn’t going to go through a bit of a challenging time and need some of the value of the house, says Moran. If the parents die without a will, the brothers stand to inherit the house, valued at about €475,000, in equal shares. “What is to prevent the reader’s brother from providing for himself at that point?” says Moran. “They could sell the house and he might be able to find somewhere smaller for himself.“If the brother is capable of being independent, it’s probably the best way forward.”Alternatively, the brothers could arrange things between themselves.If, after they inherit the house, the reader allows his brother to continue living in it, Revenue could regard this as a gift. The brothers could look at a leaseholder or a caretaker arrangement, but they would need to do some tax planning around this, says Moran. The small-gift exemption of €3,000 could be used to set against a gift before the calculation of tax too, she says. “It would be important for them to have a legal arrangement, otherwise things can become woolly, leading to disputes,” says Moran. “Everybody can start off being well-intentioned, but it doesn’t take much for relationships to take a turn for the worse when there is money involved."Encourage your parents to write a will, says Moran. The executor they appoint will be empowered to progress things like applying for the grant of probate, paying any debts and distributing assets to the beneficiaries. She added: “It can be a huge stumbling block if there is no will. If there is a vulnerability, incapacity or addiction issues, a will gives the parents the ability to deal with the situation and plan for the future. Otherwise, people can end up fighting about what should be done.” The reader seems to be proposing his brother has a right of residence in the family home. The parents could stipulate this in their will, but there are some considerations.“A right of residence would give his brother the ability to live in the property for his lifetime. While that can work well for a vulnerable adult, for someone in their 30s it could mean that for 50 or 60 years, nothing could happen to the house,” says Moran.“It couldn’t be sold without both being in agreement, and the brother’s life interest being purchased out. What if something happened to you and you needed to access your share of the inheritance in your lifetime?”[ A beneficiary in my cousin’s will doesn’t exist; who gets their share?Opens in new window ]Other considerations relate to who will insure the property and who will take it upon themselves to keep up repairs. Also, what happens if his brother starts cohabiting and that relationship breaks down? These are some of the unforeseen events that can emerge with a right of residence.The brothers could, down the line, agree to sell the house. However, the reader should know a right of residence has an actuarial value assigned to it where the resident gets a greater share from the sale.If his brother has an enduring disability, or is particularly vulnerable, the family could look at creating a discretionary trust, says Moran.“A trust is far more beneficial than a right of residence if someone is vulnerable. It’s much more flexible than a lifetime right of residence,” she says. “Trustees would have the ability to sell the property or rent it out and let the brother benefit from that income.”[ If my sister leaves €200,000 to my child, would that impact their inheritance tax threshold?Opens in new window ]The tax treatment of a discretionary trust can vary significantly depending on the beneficiary, particularly if the beneficiary is permanently incapacitated. Tax advice and estate planning is imperative. The parents could also just use a will to leave the family home to the son who resides with them. “You’d hope he would be able to raise a small mortgage to pay any inheritance tax bill with a loan, rather than having to sell the house,” says Moran.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