If you file for guardianship and there are objections, such as from siblings, the court can decide guardianship is needed but assign it to an outsider who will be paid from Mother's funds.
Or the court could decide that Mother is not yet incompetent to make her own decisions and that she does not need a guardian at all.
Guardianship has nothing to do with how many heirs or descendants there are. Your mother will still have 4 children no matter who is guardian. If she has a valid will, only those named in the will will inherit. If she has a life estate, ownership of the house will go to the remaindermen when she dies.
Have you discussed this with a lawyer experienced with guardianship cases?
Most states do not require filing a POA document. (Mine doesn't.) If Florida does not then the fact that you can't find a public record of a POA does not mean there isn't one.
Does your mother now have a Life Estate in the house where she lives? Or didn't that part of the transaction get done?
If mother was competent when she signed the QCD and she retained a life estate, the house will belong to your brother and sister when she dies. If there is no life estate, your brother and sister own the house now.
Thanks to everyone who shared, the QCD was filed I believe was to create a Life Estate Interest in my Mother to my Sister & Brother in an attempt to liquidate the homestead property. However I also believe that My sister has only a Doctor's letter of incompetentcy she received initially to sign on mother's bank accounts, never a power of attorney or a guardianship was filed of public record. There is No mortgage and No Will and Mother owns the house and is a widow as of 2008. I've searched & examined real estate title & property ownership in Florida years ago (26 yrs) & know that I personally don't want to fight with my siblings but I just don't want to be forced to file Guardiandship for a Mother of 4 children not 2.
Tiny, I want to spend more time later rereading the posts, especially Igloo's. But for now I just want to offer one observation. Assuming the Quit Claim Deed was properly executed and recorded, and assuming there are no superior interests (such as liens), title would have been to the two individuals.
Filing guardianship doesn't allow you to change that. There are some more legal issues but I want to reread the other posts and think a bit about this.
I would ask though why you would feel it appropriate to expand the number of heirs, and whether or not there's a Will. If there's not a Will or Trust, I think you might be facing some real challenges in trying to get others named as heirs. And I'm not even sure that would be legal.
And there's the whole issue of your mother's alleged incompetency, i.e., who declared she was, and when? Who made the decision that she's not competent to execute a deed?
Countrymouse, I’m guessing tiny boy means his folks did a QCD - Quit Claim Deed. In the US, for real property there’s different types of deeds that get recorded at the courthouse to establish ownership. QCDs, Warranty Deeds, Tax Deeds, etc. To me, QCD are a pox on anything real estate as no guarantee of ownership. Most property sold with lending will require that it’s done via a Warranty Deed, which guarantees ownership as title search done & title insurance issued. The only way -to me- that QCDs are a solid is if it’s done via a judges orders, which is usually how property in a divorce is done... judge orders jointly owned/mortgaged property transferred to 1 spouse & it’s done via a QCD within divorce decree. Had it in my first divorce.
Tiny - ok so the QCD, has it been filed and recorded at the courthouse? If your state requires this to be done in order for transfer to be valid & it’s not, then it’s kinda worthless until filed. So state property laws mucho importante. If it was recorded, I have a suggestion for you....
Another ?, is there a mortgage, heloc, or any other lending out there that uses the property as collateral? If so, the QCD again is kinda worthless as mortgage, etc are all “secured” lending and until that lending is paid off, mom does not actually own property the house outright, so she cannot transfer ownership of it. QCD is flawed.
So you are doing guardianship, right? Guardianship is a huge step imo. Why is it being done? Why is having a DPOA not sufficient? I’m guessing that there’s all sorts of financial improprieties with the QCD brother & bad blood going on.... is that it? And he perhaps was her dpoa? If so, you need a really pit bull of a guardianship atty to go after your brother for reversal of the QCD house and whatever else is out there. Regarding the property, my suggestion is you pull all paper on it. Most courthouses have on line downloads of recorded filings. And it’s cheap, like $4.00 for a Release of Deed of a Trust, $6.00 for Warranty Deed. Stuff older than maybe 10 years, they research & snail mail to you. You take all this to the guardianship atty meeting.
If no online available, so you have to trek to the CH, take a stack small bills cash to get copies. CC have a hefty surcharge, checks have to clear to release anything. Go around 9:30/10am, as courts are in session then and the CH ladies are less busy.
also if this bro was executor of dads estate, get documents on that too. Especially get the assets / debts listing filed & any “distribution” filings. Again take this to the guardianship atty meeting. If bro has been leeching from mom, then it’s on the atty to get things done. None of this is a DIY imo. To go after him will not be pretty, there will be likely permanent fissures for you & your siblings. You need imo to make this all about doing whatever to secure finances for moms care. Not about inheritance.
I do not understand the question. Are you saying that mom signed over her house to bro and family? If so, contact adult protective services, get a letter from her doc stating she was incompetent to make such a financial decision to share with APS. Guardianship will not undo anything it will have to be a court proceeding unless bro will again quit claim back to mom.
If your mother was demonstrably incompetent then I shouldn't have thought her QCD (Qualified Charitable Distribution from an IRA?) can be applied. Who is currently responsible for managing her finances?
Or the court could decide that Mother is not yet incompetent to make her own decisions and that she does not need a guardian at all.
Guardianship has nothing to do with how many heirs or descendants there are. Your mother will still have 4 children no matter who is guardian. If she has a valid will, only those named in the will will inherit. If she has a life estate, ownership of the house will go to the remaindermen when she dies.
Have you discussed this with a lawyer experienced with guardianship cases?
Most states do not require filing a POA document. (Mine doesn't.) If Florida does not then the fact that you can't find a public record of a POA does not mean there isn't one.
Does your mother now have a Life Estate in the house where she lives? Or didn't that part of the transaction get done?
If mother was competent when she signed the QCD and she retained a life estate, the house will belong to your brother and sister when she dies. If there is no life estate, your brother and sister own the house now.
What is your goal in getting guardianship?
Filing guardianship doesn't allow you to change that. There are some more legal issues but I want to reread the other posts and think a bit about this.
I would ask though why you would feel it appropriate to expand the number of heirs, and whether or not there's a Will. If there's not a Will or Trust, I think you might be facing some real challenges in trying to get others named as heirs. And I'm not even sure that would be legal.
And there's the whole issue of your mother's alleged incompetency, i.e., who declared she was, and when? Who made the decision that she's not competent to execute a deed?
Tiny - ok so the QCD, has it been filed and recorded at the courthouse? If your state requires this to be done in order for transfer to be valid & it’s not, then it’s kinda worthless until filed. So state property laws mucho importante. If it was recorded, I have a suggestion for you....
Another ?, is there a mortgage, heloc, or any other lending out there that uses the property as collateral? If so, the QCD again is kinda worthless as mortgage, etc are all “secured” lending and until that lending is paid off, mom does not actually own property the house outright, so she cannot transfer ownership of it. QCD is flawed.
So you are doing guardianship, right? Guardianship is a huge step imo. Why is it being done? Why is having a DPOA not sufficient? I’m guessing that there’s all sorts of financial improprieties with the QCD brother & bad blood going on.... is that it? And he perhaps was her dpoa? If so, you need a really pit bull of a guardianship atty to go after your brother for reversal of the QCD house and whatever else is out there. Regarding the property, my suggestion is you pull all paper on it. Most courthouses have on line downloads of recorded filings. And it’s cheap, like $4.00 for a Release of Deed of a Trust, $6.00 for Warranty Deed. Stuff older than maybe 10 years, they research & snail mail to you. You take all this to the guardianship atty meeting.
If no online available, so you have to trek to the CH, take a stack small bills cash to get copies. CC have a hefty surcharge, checks have to clear to release anything. Go around 9:30/10am, as courts are in session then and the CH ladies are less busy.
also if this bro was executor of dads estate, get documents on that too. Especially get the assets / debts listing filed & any “distribution” filings. Again take this to the guardianship atty meeting. If bro has been leeching from mom, then it’s on the atty to get things done. None of this is a DIY imo. To go after him will not be pretty, there will be likely permanent fissures for you & your siblings. You need imo to make this all about doing whatever to secure finances for moms care. Not about inheritance.