VivianMM Asked May 2012

Is it better to have the house signed over in a quick-claim, or left in the will?

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I'm in the state of Indiana. I have been my mothers sole-caregiver going on seven years. She wants to do a quick-claim. I don't know what is best. Her health is declining and no legal matters are taken care of. I have 4 siblings who are virtually absent in her care. They all know the house is to be left to me, but after joining this site I can see trouble on the horizon. Any advice is greatly appreciated.

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Your question can only be answered competently by an elder law attorney in your mother's state of residence, which you list as being Indiana.

My home state is Massachusetts. Here, we have a form for real estate transfer called a Quit Claim Deed. It means that the person who owns the property is giving up their title and transferring it to someone else.

Your question also asks about transferring the property by way of a Will, which indicates that you understand this is a post-death transfer.

Which way is best? Since you have been caring for your mother for 7 years now, we can assume that you want to put her interests before your own.

You mention that her health is declining. Is there a possibility that you will not be able to continue providing care in her home? Is "yes," who would pay for her care in a nursing facility?

Would you want Medicaid to pay for the care? If "yes," remember: Medicaid has a 5 year look back period for asset transfers. If your mother transfers the house to you within 5 years of needing a nursing home admission, the transfer could be disqualifying. You need to get correct information from an elder law attorney in Indiana, to see if there is an exception for transfers to a caregiver child.

As your can see, the decision involves many factors. In my state, Medicaid has programs to help pay for care at home, so that people don't have to go to nursing homes. There may or may not be transfer penalties if your state has a home care program.

Was your father a war veteran? If "yes," your mother could qualify for help from the VA. So, it all leads back to my first suggestion. Talk to an elder law attorney near your mother's home, so that she can get the benefit of all the options that could help you continue providing excellent home care for her.
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igloo572 Nov 2013
Well this is an old chestnut from the past. Wonder whatever happened to Viv and the Kairoke Queen. Viv if you are still on this site, can you do an update?

avcidy - I've seen your pain with others regarding signing over rights & ownership. I did some outreach post Hurricane Katrina with folks trying to get through FEMA, SBA, the road Home & MDA programs, and over & over again there would be issues with the property they were trying to get loans or grants on and just could not as there were judgments or liens or other bad debt associated with one of the owners on the property. Not the ones applying but their child they QCD too or the errant nephew who was one of the owners as the property was never cleared through probate or successions. The debt collectors know they can hold you hostage on all this till you pay. Not pretty.
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Yikes! Sorry to hear this! I have no intention of filing bankruptcy. Thanks for this eye-opening information!
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avcidy Nov 2013
I live in a house with life rights/dower .I signed over my portion of the deed to my son so he would not have any problems when I'm gone...well he and his wife filed chap 7 bankruptcy and because the house is his asset I had to pay $25.000 their debt. And the other kicker is they can do this to me again..so the saying 1 good deed deserves another does'nt apply here.
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We are in California. I had an attny go over my options, we had done a will on our own, and attempted to draw up a QUIT-CLAIM deed, after he reviewed our situation and Dad's assets; he told us we didn't need a will. As long as I was the heir, and was already living there, with this document, the place would pass directly to me.
The quit-claim deed makes me 50% owner now, and avoids probate. The place is paid for. I do not understand why the person above would have to Pay for the house, if it's paid off, and left to her.
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Putting the sibs aside, couldn't Viv's mom just use a warranty deed to transfer title to Vivian. Going through the title company, the property will be searched and clear title confirmed. The title company will record the Warranty Deed and all will be legal beagle. A policy of title insurance can be issued to Vivian.

I think there is a greater chance of fall out with siblings if the place in not legally transferred to Viv now or left to her in a proper will.

The benefit of the will would be that IF Viv's mom ended up in a nursing home and Medicaid stepped in, I really believe that the house would be protected from recovery by Medicaid because Viv has been there for 7 years as sole caregiver. However, without a written agreement that Vivian is getting paid a certain amount on a monthly basis to care for her mom, Medicaid will balk at that and consider the monthly stipend to Viv a gift so that will throw a monkey wrench in the mix.

One never knows how another person will pass away, but in Viv's mom's case, it may be more quickly rather than a long affair. I'm basing this on what the doctors said during her mom's last hospitalization. Of course, you can't be sure.

I personally would not put myself $85,000.00 in debt just to appease the Karioke Queen.

I think the property could be transferred now via Warranty Deed as I mentioned above, and a simple will completed stating that it is mom's intention to leave all her assets to Vivian for all the years of loving care she has given her mom and that it is her choice to transfer the title of her home to Vivian before her death.

It's hard to always be sure all the bases are covered. In so many instances, you're damned if you do and damned if you don't. A will should suffice. Medicaid will have issues with the monthly amount Viv has been receiving since it's not spelled out in a contract and also becauce Viv probably hasn't been paying income tax on the income for the past 7 years. There will be a penalty, meaning a delay in when mom could qualify. Probably not a huge delay.

Anyway, it's not going to be perfect any way you do it. I'd go with Viv's security via Warranty deed or will. No debt, however,
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igloo572 May 2012
Cat - I understand your point. I'm just thinking of the possible post nuclear fall out from Viv's siblings. "Buying" the home gets around that to some degree. Sister Señorita Karioke, who lives close by and the local celebrity, sounds especially vindictive and if she gets the other 3 or even 2 going against Viv on "mom was coerced by Viv" route it will be ugly and it could cost her to deal with it financially and emotionally. Maybe not this year but years from now.

Quiet title is usually used when you get a property via a Quitclaim deed and you are not sure if there are clouds on the ownership - like a family owned piece of property (say grandpa left it to the 3 kids but 2 are dead and now the last one QC's it to his 2 kids. There could be clouds out there with liens on it from the 2 deceased ones) OR if you get a property at a tax sale and you want to sell if after the waiting/redemption period and you want to sell it with a clear title rather than a QC deed sale OR you want to develop the tax sale land and can't get a loan because of the QC deed. Quiet sends out notices to the old owner, interested parties and puts notice in the paper - how it's done kinda depends on state law, some notices have to be personally served. Where I live there are more than a few abandoned properties from Katrina and many have gone to tax sale and beyond the redemption period. But the law really finds in favor of the old property owner - even if they haven't paid taxes since forever - if they can show no proper notification was done or attempted. Quiet title establishes that notifications have been done or attempted. You don't need it if you get a property in a divorce settlement, because usually that property has an active mortgage, and you are just giving your ownership to the ex-spouse to continue the mortgage as before but without your ownership claim.

yes on warranty deed; imho warranty deed always better than a QC.

QC with Life Estate is sticky as Viv can't take possession of it until mom dies. A lot can happen over time.
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I also think it's a good idea to have Viv's mom do a simple will leaving everything to Vivian. Somewhere in there it should be stated that Vivian has been her sole caretaker since 2006.
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Hi Igloo: Indiana has title companies. I don't know why Vivian and her mom couldn't just go to a title company, have them do a title search on the property and then have Viv's mom sign a Warranty Deed, deeding the house to Viv. The title company could issue a title insurance policy to Viv showing free and clear title. Is this what you mean by Quiet Title.

In my humble opinion, I don't think it makes sense for Vivian to pay market value for a house that her mom plans to leave her. Her mom has the right to leave her house to whoever she wants or give it to whoever she wants.

Vivian, you could call a local title company as ask some questions about how best to transfer title in your location and also about the cost of a property search and the issuance of a title policy. The title policy that the Title Company issues will prove that you have clear title to the property. It's also possible that you could have your mom deed the property to you while reserving for herself a life estate. That means it's hers until she dies then it's yours. Call your local Title Insurance Company and ask about it.

Just my thoughts, Cattails.
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igloo572 May 2012
Cattails - I don't know enough about how the length of family care taking is evaluated. I didn't do that with my mom. But I did pay for to have an aide when she was in IL, the cost of which I will claim against the state's tally for her NH care as the aide kept her from going into NH for several months prior to her admission. Each state seems to have their own twist to Medicaid Estate Recovery and what is an exemption and how the state does it's death laws makes a huge difference - like liens vs claims. Like for TX, Merp is a class 7 claim so there are 6 other classes ahead in the check out lane so MERP is low in TX but still happens. Viv should really work with an attorney in her state to see what the best option is.

I've seen a lot of problems with QC deeded property, after H.Katrina I did helping with folks sort through dealing with fema & sba. You want madness, deal with those two, makes a state Medicaid system a cakewalk. What kept on cropping up was the house (that was flooded in NOLA or vaporized on the Gulf Coast) was so often inherited generationally and done via a QC or better yet never gone through probate. Well 8 out of 10 times the title was clouded so the property "owner" couldn't get loan or grant because they didn't hold a warranty deed to the property and so no clear title or proof of ownership. With QC deeds there is NO warranty. The property could have liens or judgements or clouded title or any other claims to the property and still get a QC deed. The person who does the QC might not even be the owner of the property but is deeding what they think is their ownership. If you should ever need to use the property as collateral or get a mortgage on the property - say you want to build on it years from now and need a loan (mortgage) to do it - mortgage companies and banks won't usually accept a QCD as there is no assurance of good title. Also should you want to sell it later on and the buyer needs a mortgage to buy it, most mortgagee's will not loan on a QCD property as there is no guarantee (warranty) as to ownership. So you end up having to do a quiet title done - they are not expensive (about 1,500) but take time because of the legal postings needed which queers the real estate deal. Now the QC can work if the owner (the QC "grantor") bought the property and has a valid release of the Deed of Trust and really has never ever done anything to cloud the title and there are no other possible owners or folks to contest the QC but I'd still go an run a quiet title afterwards. I've had a home QC'd to me in a divorce - that situation works as the mortgage doesn't change, but the DH does (lmao).

I do think that Viv needs to be compensated financially for her caregiving plus gets her to have some $ on her own and her mom's income is large enough to allow for that - having an attorney to do a personal services contract does that. Personally I prefer the idea of paying a fair but as low as possible price for the house and owning it as doing that totally deflects any siblings ever saying but mom gave you the house for the next 20 years plus helps on getting your credit worthiness going.
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