Rocky Mount, NC asked in Estate Planning for North Carolina

Q: If my mother & I are listed on a warranty deed and a mortage still. And she gives power of attorney to my brother.

What happens to estate and affairs in N.C.?

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1 Lawyer Answer
Catherine E Bruce
Catherine E Bruce
  • Estate Planning Lawyer
  • Chapel Hill, NC

A: A Power of Attorney is only effective during the life of the grantor. So, the POA will have no effect on how your mother's estate is handled after she passes away. The POA may grant your brother authority to act on behalf of your mother in dealing with the property and mortgage while your mother is alive (although that depends on the exact language of the POA and whether power over real estate affairs was included or not). Whether he has this authority now, or only if/when your mother becomes incapacitated, also depends on the exact language of the document. Again, whatever power he may have under the POA will end at your mother's death.

Whether your brother will be involved in dealing with the property after your mother's death depends on how the property is titled. If you and your mother own the property as "Joint Tenants with Rights of Survivorship," you will own the entire property at your mother's death. Your brother won't have much to do with it, if that's the case. However, if you own it as "Tenants in Common," her share of the house will pass according to her will or under the Intestacy Statute if she has no will. Your brother may receive a share of the house under that. Also, you mother may have appointed your brother as Executor (if there is a will) or he may apply to act as Administrator (if there is no will). If that is the case, your brother may end up managing your mother's estate after her death.

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