Q: Who gets a house upon the demise in this situation?
My grandfather wants to remove my aunt from his deed. He has listed my mother as his beneficiary in his trust and the house is listed in the trust. My question is, since my aunt is listed on the deed , who will get the house? Does the trust take precedence over the deed? My aunt is not complying with being removed from the deed and my grandfather is too elderly to make it happen. Can my mother act as his POA (power of attorney) ?
A: You need to speak with a Florida Estate Planning and Probate Attorney and get a copy of the current deed and have it reviewed. Based on the type of deed and how the property is held will determine what can or needs to be done. Generally speaking, a valid deed will be enforced above a Will and Trust if the Deed is properly drafted and legal. Ownership will be determined based on the deed and precisely how it is held, your grandfather may or may not be able to remove the aunt from the property. For example, if it is an Enhanced Life Estate Deed (Ladybird Deed), then the answer is generally yes that changes can be made by your grandfather, in some other circumstances possibly as well. If it does not fall into one of those types, then your grandfather may own the property equally with the aunt and unless she agrees to a deed change then there is nothing that can be done other than deal with her as a part owner of the property. Also, if the property is Homestead this may change the answer as well based on if there is a surviving spouse. The Power of Attorney may or may not allow for changes and they may or may not be effective and or enforceable. At this point, even if you could use the POA for anything, issues would be raised regarding your grandfather's mental capacity and the possibility of undue influence even if you could make changes because of his age and mental capacity. I will also add, even if you could use the POA to make changes, the POA is/must be used for the benefit of the person (your grandfather) who gave the POA, so you can imagine the issue and problems that can and likely will arise if your mom used the POA to put the property into her name when there are questions about your grandfather's mental ability and capacity, you can just imagine this slipper slope that is starting here. You need to review the Deed, Trust, POA and get hold of a Florida Attorney to start and get more specific advice based on these reviews and additional precise details you can provide of all surrounding circumstances.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.