[squiffy]

Thanks for presenting such an interesting situation.

It's important that you talk to your mom and try to convince her to speak with an attorney who specializes in wills and trusts.

It's extremely unwise for her to make her wishes known orally. This can create a huge amount of ill will in the future if your brother doesn't believe your version of events. If her wishes are made known in writing while she is of sound mind and body, with witnesses, your brother will be less likely to make you the focus of his anger or resentment, if any.

It's not even clear, from a legal standpoint, whether your mom can attach such strings to a cash bequest. She would effectively be saying to your brother, I won't give you this money unless you promise to use it to pay off your mortgage.

And, as you say, he can probably just refinance to get the cash anyway, which would effectively hurt him.

Even if your mom can force your brother to accept this condition, it must be done in writing and legally, by means of an appropriate trust or legal instrument. And an experienced lawyer can tell your mom whether it is even legal for her to structure the deal in that way.

If you were to carry out your mom's wishes based on an oral agreement, you could get into legal trouble. There is no evidence that your mom legally appointed you the executor of your estate. And your brother might be able to mount a legal challenge against your efforts to condition his payment.

If your mother dies without a will, then her property may have to go through probate, in which case the state law may require that the home be sold and the proceeds divided equally among the three of you.

Actually, if you find out what the default rule is in your state, then you also have the option of saying nothing to your mother and letting probate take care of distributing her assets.

Unless she makes her special wishes known in writing, the default rules will probably apply, and your brother will get his share with no strings attached.

If it goes through probate you probably will not have the legal right to assume control of your mother's estate and dole out your brother's portion with strings attached. It would probably be ILLEGAL for you to honor your mother's orally expressed wishes.