Legal Question in Wills and Trusts in New York

If your mother did not retain life estate at the time she transferred the property to you and your sister, then she simply does not have a life estate. A life estate ends upon death and cannot be retained in a will.

The retained life estate had to be in the Deed transferring the property and if the Deed did not have this language she might not have one. I have not seen the Deed so I do not know what might have been said in it about this, However, you and your sister have allowed her to rent the property and retain the rent, so you might have acknowledged by this that she had retained a life estate, even if it was not in writing. Your facts do not say who has been paying the bills on the house (insurance, real estate taxes, utilities, repairs, etc.) and/or who has been reporting the rental income - you or mom. These matters may impact on the right of NYS to take the rent and more information is needed for a proper answer. This is a reply to an Internet question and the response is not intended to be legal advice and/or as creating an attorney-client relationship.

A will does cannot create a life estate. She abandoned it when she moved out.