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The "Will" states a TODD and everything in it goes to my sibling. If it's contested, what has to be proven to become the new grantee?

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MsAtin16: Pose your query to an elder law attorney.
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you don't say if she is applying for Medicaid. The deed would have had to be recorded a certain number of years to avoid liens for Medicaid most states are 5 years, CA is 3.

You need an attorney as this is not a matter to be addressed or contested in probate. If she did the TODD years ago don't know if you have any legal standing and was of sound mind when she did it too.
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As others said - contact an atty. Anyone can list a beneficiary on things that they want to 'transfer' to someone immediately upon death. Those things that transfer like that aren't addressed in probate or items designated in the will.

I would think the trans on death could be contested if there are some medical documents to show your parent was not of sound mind when the transfer document(s) were completed and signed.

Often a parent will put one child as a beneficiary on a life ins policy and the conversation is that this child should share it with all the children. However, once it transfers to that single child - there is nothing to force that child to share with anyone at all. Sadly, parent's true wishes are not honored because they happened to think that one child would do the right thing.

Your situation is worth a discussion with an atty if you can show/prove that parent was coerced, not mentally sound, etc.
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If Mom is still alive and you are applying for Medicaid, the house is an exempt asset for now. Upon Moms death it becomes an asset that Medicaid can then put a lien on the house. IMO the person that is beneficiary of that house will have to pay the lien or sell the house to pay Medicaid.

Also my opinion, if you need to sell the house for her care, then you can sell it. Just because its in the Will does not mean it can't be sold before her death. Read your DPOA and see if it allows you to sell. You can really sell for any reason as long as Mom gets the benefit of the sale. Example would be if her house is getting too much for her to keep up and she would be better downsizing to an apt. Then the proceeds would go to help offset the cost of the apt. Or, placing her in an Assisted Living. The house needs to be sold at Market Value if Medicaid will ever be needed.

Your sibling does not own that house till Moms death. Its still Moms to do with it whatever needs to be done to properly care for her. Its her asset.

You will need to see an elder lawyer if Medicaid is involved or will be involved.
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A will goes through probate but an asset with a designated beneficiary that is transferred to the beneficiary on the owner's death does not. This is called a TOD. A transfer on death deed (TODD) transfers real property to the named beneficiary upon the owner's death. It would have to be signed by the current owner, notarized, and recorded with the country. As soon as the owner dies, the deed is transferred to the beneficiary. What is in the house, unless the owner has written a memorandum giving household items to particular people, would go through probate. If the owner is still alive, they can change the TODD. If the owner is dead, the asset transfers immediately. Other commenters here have advised you to see an attorney. This is the best thing you can do if you really think the owner named the beneficiary to the TODD under fraud or duress.
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AlvaDeer avatar
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AlvaDeer May 2022
Wow, yes, you are absolutely correct. My response below doesn't take into consideration the rules on the TODD transfer. It needn't go through probate and any accounts held this way or POD are the same. They don't go into probate, they aren't a part of any will and they cannot be contested as a will can.
While I still think that the OP should see an attorney for all her questions, I also believe your answer to this particular question is spot on RIGHT.
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See an attorney for this question. Often when someone is purposely left children/a child out of the will that is said specifically in the will. If that is the case you don't have a tinker's chance, and this would be a waste of your time, but especially of your money.
Anything can be contested under the law if you have the time and funds to do it. The real question is can you win, and the answer to this question is almost always, in this case, no.
Your elder will have had a reason, valid or NOT, for doing what he or she did. If you were specifically disinherited you should, in my humble opinion, move on with a quality life of your own.
But again, this is a "lawyer question" and to reassure yourself you might consider an hour of lawyer time. Remember that this is a Forum of regular folk with an opinion, perhaps some experience, but questions regarding medical, accounting, wills, finances are best taken to experts in their respective fields.
Wishing you good luck.
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my2cents May 2022
Transfer on death has nothing to do with the will - separate. Will addresses what is left over in estate to disperse between those named. Trans on death items (or other things with beneficiary, like life insurance) are not part of the leftover estate.
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You can hire an attorney to contest anything in a will but that doesn’t mean you have any real chance of winning. It will cost you money and it will hold up probate of the will. I’m not sure why you have “Will” in parenthesis as you do but if there is a will, especially one done with a lawyer involved, that includes a TODD I can’t imagine what successful grounds there would be to challenge that but even if you could prove some sort of fraud or coercion it’s unlikely the TODD would just apply to a diffrent person. I’m not a lawyer but I think the property would then become part of the estate and either sold to pay back Medicaid if indeed that’s involved or other debts with the balance being split between her beneficiaries after that. Based on your question it doesn’t sound like you and your sibling are on agreeable terms so non of this will be easy or cheap and you might really consider the benefit vs cost of going down this road both financially and emotionally to decide if it’s worth it. Sometimes we do things out of emotion, anger that cost us more in the long run than letting go and making peace with ourselves which is of course difficult and costly emotionally but sometimes worth it.
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I find it odd that applying for Medicaid and a transfer on death deed to be a common element of this question. If mom is on Medicaid there may very well be no property to transfer on death. Medicaid will probably place a lien on the home equal to the cost of her care. There may be an exception is sibling provided medically necessary care for two years prior to mom going into nursing home.
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my2cents May 2022
Actually, the trans on death for the house bypasses the probate/estate process. You designate a beneficiary(ies) for a house to transfer to upon death. That house will not be listed in the inventory of the estate because it 'transferred at death' to the person(s) named. It works the same as you being a beneficiary on a life insurance policy - you file the death certificate and get the money paid personally to you. Insurance money would not be part of the estate to share with creditors or heirs.

Medicaid looks at what is left in estate and has the opportunity to go after what is 'leftover' in estate if they choose to do so. Medicaid cannot go after the insurance money you received as beneficiary or things that were transferred to you upon death
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MsA, are you concerned that you need to sell the house now to pay for mom's care?
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Have you been the one doing all the work for Mama and she's left everything to your sibling? When did you find this out?
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Your profile states:

"I want to be aware of my rights as a POA for my mom. Im being pushed to sign for Medicaid help and admit my mom into a long term care facility. It’s against my moms wishes and I do not know if I’m in my legal rights to have time to become self aware to make that decision. "

Is your mom still alive? If so, why are you concerned about the TODD already?

If she's still alive, and you are her PoA, who is pushing you to apply for Medicaid for her?

Being PoA for someone means you are making decisions in HER best interests, it's not about your "rights" as a PoA (you have duties, not rights). Maybe her needs are beyond what you are capable of handling -- which would not be uncommon for any caregiver eventually -- and the only way to transition her into facility care is with Medicaid. She would also need to qualify medically, so whoever is pressing you must see that she is very ill. As her PoA you are legally required to make decisions that benefit her. She may not want to go (and no one ever looks forward to it) but maybe she's not really understanding the severity of her condition or situation.

In regards to the TODD if your mom has passed, you will need to ask an attorney for your mom's home state as the laws can differ. This is a global forum and there's no guarantee you'll get an accurate answer and there'd be no accountability for any erroneous guidance. If the question is about your mom's will, what is causing you to think about contesting it? Do you suspect the will is not legitimate? Have you seen a copy of it?
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Personally, I have a problem that anyone wants to change the wishes of the grantor of gifts upon death.

Inheritance isn't a right, it's a gift.
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