Q: I have been taking care of my elder parents, my father passed, my mom is in long term, i live in their home
I am paying their mortgage payment and wonder what happens when and if my mother passes. Please advise.
A: This answer will depend on how the Warranty Deed to the house is titled and if your mother has a last will and testament or not. I would recommend that you have a consultation with an Estate Planning/Probate Attorney for more accurate information.
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At the time of your mother's passing, if her home is titled solely to her in fee simple, then there will need to be a probate administration to transferred to her heirs at law (if no will) or devisees (if there is a will). The probate process is necessary to give clear title to the beneficiaries of the estate subject to the mortgage of course, which it is important to continue to pay, as there is no grace period when a borrower dies.
During your mother's lifetime,iIt is important to maintain your mother's homestead exemption, so that the property is exempt from creditors as it passes through her estate. It is all right if an heir resides in her home during her lifetime--this does not affect her homestead exemption as she is presumed to have an "intent to return" even when she is living in the nursing home--but you cannot rent the home to a third party. If you have any questions, you are welcome to call our office for a free phone consultation.
A: You should consult with an estate planning attorney now particularly if your mother is still capable of signing documents. An estate planning attorney can assist in correcting the title to the property so it can pass to you without having to go through the probate process. This will be especially important if you are the sole heir to your mother's estate.
A: You will want to speak with an Estate Planning/Probate Attorney in the state where the property is located. You will want to check and review the property deed in order to see how the property is titled and held. If your mom is of sound mind and is able to make informed and knowing decisions based upon her mental capacity, then some sort of estate planning can still be done (will and or trust, etc. as needed and desired by her). If your mom does not have mental capacity and there is no estate planning in place (will or trust or manner in which the property deed is titled), then a Florida Probate will be required. If no Will or Trust exists then the Florida Intestate Statutes (without a Will) are going to be applicable. Generally, based on who survived your mom (you and your siblings or their children), this will determine who will share in your mom's estate upon her passing. I will note, if the property was her homestead, there are special rules that apply to this as well and the property will pass equally to the children (you and your siblings) unless there is other estate planning in place or the deed conveys something differently. You really should speak with a Florida estate planning/probate attorney for the specifics of your circumstances and in order to get more precise advice based on all the circumstances. I will add, if the property is your mom's homestead, there are special rules that apply to that and which will protect that property allowing it to be passed to the surviving children through a "petition to determine homestead" and this allows the surviving child living in the property to take over the remaining mortgage and continue to make payments. A lot depends on whether there is any estate planning in place and what it says and if there is none, then it depends on what children your mom has in addition to you.
You don't automatically get title to the house just because you have been paying her mortgage. However, may I suggest a lady bird deed: read more about it here: https://www.elderneedslaw.com/blog/lady-bird-deed); or watch video here: https://www.youtube.com/watch?v=XeOHKsLiY9M.
Finally, for assistance with your mother's long-term care, you may want to discuss, with a medicaid-planning attorney, how to protect her assets and get Medicaid to pay for some of her at-home care expenses.
Learn more here: https://www.elderneedslaw.com/medicaid-planning-attorney
Good luck to you!
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