Question: Several years ago, my brother and I bought an investment property. Because we each were married and had children, title was taken as tenants in common.

Recently, my brother died. His wife had predeceased him. His children are not willing to pay their share of the outstanding mortgage, taxes and insurance. Are they legally obligated to do so?

Answer: There is an old adage in real estate that says, "If you pay, you stay, and if you don't, you won't."

You have raised several questions. First, who currently owns your brother's half interest in the property? Because you held the house as tenants in common, that means that each of you had a divisible interest in the property. Did your brother have a Last Will and Testament? If so, the terms of that document will control who will get his half of the property. If there was no Will, the Laws of Intestacy in the State where your brother died will be applied. For example, in the District of Columbia, if there is a wife, she will inherit the property. If the wife is deceased, the children will share the property equally. Keep in mind that these laws may differ from State to State.

However, when a person dies -- with or without a Will -- a probate estate must be opened up in the local Courts. In most States, the property of the deceased remains in a state of limbo until a Personal Representative (PR, and also called Executor) is appointed by the Court. Once the appointment is made, title to the property will automatically go into the name of that PR.

Has anyone opened up a probate case for your brother? If not, you should seriously consider doing that immediately. If your brother's children are not willing to do this, you can petition the Court to appoint you as that PR. Until probate is opened, your brother's interest in the property remains clouded. You cannot sell or mortgage the property without the involvement and consent of the PR.

Your next issue is whether the children are legally obligated to pay their share of the expenses. First, let's discuss the mortgage on the property. You have to carefully review the Deed of Trust and Promissory Note which you and your brother signed when you first obtained your mortgage from a lender. I suspect that it states that the mortgage obligation is "joint and several." That means that both of you were separately obligated to pay the full amount of the mortgage. So I strongly suggest that you make the entire monthly payment. Otherwise, the lender may decide to open probate and then foreclose on the property.

The lender will not be able to foreclose on the property until your brother's interest is vested in a PR, and that is why they may have to start probate proceedings on their own. But if your obligation under the promissory note is "joint and several," the lender can also sue you for any non-payment.

The bottom line is that to protect your investment, you have to keep your mortgage current.

As for the real estate taxes, you are in the same boat. You do not want to lose the house by way of a tax sale, and thus, once again, you should keep the taxes current.

You should explain all this to your brother's children. They should understand that the property has value, which could be lost if the monthly financial obligations are not made. If the children do not have any money to pay these obligations, you should make an arrangement with them -- in a written document -- that you will make the monthly payments, but when the house is ultimately sold, any moneys which you have advanced on their behalf will be repaid to you out of the sales proceeds, and then the balance will be divided equally. You can also consider buying out their interests.

There is a lesson to this story. Any time that two people decide to purchase property together, they should first enter into a written partnership agreement. Such document should spell out such matters as how to divide the property if one wants out of the deal, as well as how to handle the situation on the death of one of the co-owners.

Married couples generally do not have such agreements. Should a divorce occur, the parties then have to decide how to divide their real estate holdings. Otherwise, an impartial judge -- who knows nothing of the family history -- will have to make that decision.

A written partnership agreement, carefully drafted, will go a long way toward avoiding future problems. Preventive law is much less expensive than prolonged litigation.