Denver, CO asked in Estate Planning and Elder Law for Colorado

Q: If my mother-in-law is not capable of making basic decisions, can my husband have her house placed in his name?

Does a Trust need to be created to to have the house transferred to his name? At one point she sold her house without any knowledge of what she did, but we were able to get it reversed given elder abuse from a realtor.

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1 Lawyer Answer
Rebecca Pescador
Rebecca Pescador
  • Estate Planning Lawyer
  • Westminster, CO
  • Licensed in Colorado

A: You don't mention whether your mother-in-law resides in Colorado. The following answer presumes that she does. If she lives in another state, an attorney in that state should be consulted to learn the proper procedure there. If your mother-in-law is no longer capable of making rational decisions, the first step is to seek a guardianship and conservatorship over her. It sounds like this needs to be done soon. This is done by filing the appropriate paperwork in the county where she resides. The court will then appoint a Court Visitor to provide an independent evaluation and report to the court. Based upon that report and evidence presented (including a letter from your mother-in-law's doctor), the court will make a determination. If the evidence supports that she can no longer make rational decisions, then a guardian and conservator will be appointed. As her son, your husband would have some priority for being appointed in these roles. The appointed guardian/conservator would then have the authority to manage all of her assets and debts, including her house.

Under no circumstances should your husband transfer the house to his name. The proper court process should be done first or he risks being found guilty of elder abuse unless he shows that he's purchasing the house from her for fair market value on fair market terms.

While a guardianship/conservatorship can be pursued without legal counsel, it is best to at least have some guidance, as it is a technical process and requires strict compliance with the rules.

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