Q: In 1997, we created a living will for estate protection in case my mom went into a nursing home. It was set up so my sister and her husband received half the house and my sister’s three kids got the other half.
My sister took ownership of the property at that time and my mom’s attorney created a life estate for her. My sister passed away 4 years ago and now my brother in law is holding her house hostage.
My mom has been paying all taxes, home equity loan, maintenance, repairs, and all other expense including yard maintenance. How can we get my mom’s house back to where she owns it? She deserves to have her house whether it be for her to sell and live somewhere else or take her money and spend it.
A: Your mom’s attorney may have been foolish to give your sister ownership of the house and only give your mother a life estate in the home.
What was he thinking? But more importantly, what was the family thinking? If you were trying to keep your money out of Medicaid’s reach, the family is now paying the price for this decision.
Your mother may no longer own the house and may have nothing to show for her years of paying the maintenance and expenses on the home. Depending on the manner in which the deal was structured, your sister should have willed the house back to your mother after she died, but she didn’t. So, now your sister’s heirs (notably, her husband and the children) own the property.
While he may be unable to toss out your mother or sell the property while she is alive, the situation may ultimately not resolve in your mom’s favor. The real issue is for homeowners to have a complete understanding of the decisions they make at the time they make those decisions. That means understanding all the possible variables and scenarios that may arise in the future.
You can’t always plan for every issue, but you should always consider the most common outcomes and make sure that we plan for those outcomes.
The attorneys could have put the house into a trust and named the living siblings as the beneficiaries of the trust. That might have better protected your mother’s interests, especially if your mother was the trustee of the trust or all of her children acted jointly as trustees. At the very least, your brother-in-law would have little or no say in the matter.
But circumstances change and if at the time the home changed owners the family felt differently than they do now, it was up to the family members to consider the different outcomes that could arise in the future.
At the very least, the attorney that assisted you and your mother should have walked through some of the scenarios that could come so your mother to make an informed decision.
If the attorney gave her that information and your mother decided to go forward anyway with the arrangement, it may not have been up to the attorney to counter your mother’s wishes.
Finally, for future reference, it’s important for adult children to discuss the estate planning decisions their parents make and walk through the variables that can arise in life.
While the natural order assumes that parents will die before their children, sometimes tragedy strikes and things change. There are times that medical issues cause major life changes in families, in other cases extended unemployment, or the illness of children or some other disaster.
In each of those circumstances, a parent may need flexibility with his or her assets.
You should find a different estate attorney who can help you figure out if your mother has any remaining claims to the property or not.
If not, you should work on a plan B.
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Usually when a trust is made the attorney will say it needs to be reviewed in a few years to see if the situation has changed. My parents never went back to have their trust looked over and when they died things did not go smoothly. If a fresh set of eyes had looked at the document again the glaring errors might have been caught. As it is the government got a huge chunk and my siblings are upset.