My mother is 87 and my dad passed on 2 years ago. My mom wants to leave her 2 flat house to my brother and me when she is passes

This is not as simple as you may think, although transfer of real estate could be fairly easily accomplished with the assistance of a seasoned estate planning attorney.

Your mother could provide for the home to be left to the two of you in her will. Another alternative would be for her to use a Transfer on Death Deed Instrument ("TODI"). The TODI is fairly new in Illinois but is designed to pass the home to the designated individuals upon your mother's passing. With something as important as the transfer of her home, it is well worth the cost to have a qualified estate planning or elder law attorney involved. Even a small mistake in your mother's documentation could thwart her intent.

You need to hire an Elder Law or Estate Planning Attorney as there are numerous problems for the uninformed. A transfer of a partial interest could result in penalty issues if your mother needs Medicaid assistance to pay for long term care. Such a transfer could also result in capital gains tax being owed upon sale after your mother’s death. While a transfer on death instrument might be appropriate, it must be part of an overall strategy. A TODI does not give you authority to sell the property to pay for your mother’s care should it be necessary during her life. A TODI does not transfer any other assets and it does not handle creditors and possible issues with obtaining title insurance in order to sell the property after mother’s death. The best solution may be putting the property into a Living Trust, which will avoid probate, avoid any capital gains issues, avoid issues with your brother or your creditors, and can easily handle all the other potential issues during your mother’s life and after her death. Good Luck.

Another option, if your mother is competent (not suffering from dementia), would be putting the house into a land trust. There is a small annual fee for administering the trust (through a bank or trust company), and contingent beneficiaries are named in the trust document. The house would be transferred upon your mother's death, without the need to open a probate estate.