Is it better to have the house signed over in a quick-claim, or left in the will?

Your question can only be answered competently by an elder law attorney in your mother's state of residence, which you list as being Indiana.

My home state is Massachusetts. Here, we have a form for real estate transfer called a Quit Claim Deed. It means that the person who owns the property is giving up their title and transferring it to someone else.

Your question also asks about transferring the property by way of a Will, which indicates that you understand this is a post-death transfer.

Which way is best? Since you have been caring for your mother for 7 years now, we can assume that you want to put her interests before your own.

You mention that her health is declining. Is there a possibility that you will not be able to continue providing care in her home? Is "yes," who would pay for her care in a nursing facility?

Would you want Medicaid to pay for the care? If "yes," remember: Medicaid has a 5 year look back period for asset transfers. If your mother transfers the house to you within 5 years of needing a nursing home admission, the transfer could be disqualifying. You need to get correct information from an elder law attorney in Indiana, to see if there is an exception for transfers to a caregiver child.

As your can see, the decision involves many factors. In my state, Medicaid has programs to help pay for care at home, so that people don't have to go to nursing homes. There may or may not be transfer penalties if your state has a home care program.

Was your father a war veteran? If "yes," your mother could qualify for help from the VA. So, it all leads back to my first suggestion. Talk to an elder law attorney near your mother's home, so that she can get the benefit of all the options that could help you continue providing excellent home care for her.

Well this is an old chestnut from the past. Wonder whatever happened to Viv and the Kairoke Queen. Viv if you are still on this site, can you do an update?

avcidy - I've seen your pain with others regarding signing over rights & ownership. I did some outreach post Hurricane Katrina with folks trying to get through FEMA, SBA, the road Home & MDA programs, and over & over again there would be issues with the property they were trying to get loans or grants on and just could not as there were judgments or liens or other bad debt associated with one of the owners on the property. Not the ones applying but their child they QCD too or the errant nephew who was one of the owners as the property was never cleared through probate or successions. The debt collectors know they can hold you hostage on all this till you pay. Not pretty.

Yikes! Sorry to hear this! I have no intention of filing bankruptcy. Thanks for this eye-opening information!

I live in a house with life rights/dower .I signed over my portion of the deed to my son so he would not have any problems when I'm gone...well he and his wife filed chap 7 bankruptcy and because the house is his asset I had to pay $25.000 their debt. And the other kicker is they can do this to me again..so the saying 1 good deed deserves another does'nt apply here.

We are in California. I had an attny go over my options, we had done a will on our own, and attempted to draw up a QUIT-CLAIM deed, after he reviewed our situation and Dad's assets; he told us we didn't need a will. As long as I was the heir, and was already living there, with this document, the place would pass directly to me.
The quit-claim deed makes me 50% owner now, and avoids probate. The place is paid for. I do not understand why the person above would have to Pay for the house, if it's paid off, and left to her.

Putting the sibs aside, couldn't Viv's mom just use a warranty deed to transfer title to Vivian. Going through the title company, the property will be searched and clear title confirmed. The title company will record the Warranty Deed and all will be legal beagle. A policy of title insurance can be issued to Vivian.

I think there is a greater chance of fall out with siblings if the place in not legally transferred to Viv now or left to her in a proper will.

The benefit of the will would be that IF Viv's mom ended up in a nursing home and Medicaid stepped in, I really believe that the house would be protected from recovery by Medicaid because Viv has been there for 7 years as sole caregiver. However, without a written agreement that Vivian is getting paid a certain amount on a monthly basis to care for her mom, Medicaid will balk at that and consider the monthly stipend to Viv a gift so that will throw a monkey wrench in the mix.

One never knows how another person will pass away, but in Viv's mom's case, it may be more quickly rather than a long affair. I'm basing this on what the doctors said during her mom's last hospitalization. Of course, you can't be sure.

I personally would not put myself $85,000.00 in debt just to appease the Karioke Queen.

I think the property could be transferred now via Warranty Deed as I mentioned above, and a simple will completed stating that it is mom's intention to leave all her assets to Vivian for all the years of loving care she has given her mom and that it is her choice to transfer the title of her home to Vivian before her death.

It's hard to always be sure all the bases are covered. In so many instances, you're damned if you do and damned if you don't. A will should suffice. Medicaid will have issues with the monthly amount Viv has been receiving since it's not spelled out in a contract and also becauce Viv probably hasn't been paying income tax on the income for the past 7 years. There will be a penalty, meaning a delay in when mom could qualify. Probably not a huge delay.

Anyway, it's not going to be perfect any way you do it. I'd go with Viv's security via Warranty deed or will. No debt, however,

Cat - I understand your point. I'm just thinking of the possible post nuclear fall out from Viv's siblings. "Buying" the home gets around that to some degree. Sister Señorita Karioke, who lives close by and the local celebrity, sounds especially vindictive and if she gets the other 3 or even 2 going against Viv on "mom was coerced by Viv" route it will be ugly and it could cost her to deal with it financially and emotionally. Maybe not this year but years from now.

Quiet title is usually used when you get a property via a Quitclaim deed and you are not sure if there are clouds on the ownership - like a family owned piece of property (say grandpa left it to the 3 kids but 2 are dead and now the last one QC's it to his 2 kids. There could be clouds out there with liens on it from the 2 deceased ones) OR if you get a property at a tax sale and you want to sell if after the waiting/redemption period and you want to sell it with a clear title rather than a QC deed sale OR you want to develop the tax sale land and can't get a loan because of the QC deed. Quiet sends out notices to the old owner, interested parties and puts notice in the paper - how it's done kinda depends on state law, some notices have to be personally served. Where I live there are more than a few abandoned properties from Katrina and many have gone to tax sale and beyond the redemption period. But the law really finds in favor of the old property owner - even if they haven't paid taxes since forever - if they can show no proper notification was done or attempted. Quiet title establishes that notifications have been done or attempted. You don't need it if you get a property in a divorce settlement, because usually that property has an active mortgage, and you are just giving your ownership to the ex-spouse to continue the mortgage as before but without your ownership claim.

yes on warranty deed; imho warranty deed always better than a QC.

QC with Life Estate is sticky as Viv can't take possession of it until mom dies. A lot can happen over time.

I also think it's a good idea to have Viv's mom do a simple will leaving everything to Vivian. Somewhere in there it should be stated that Vivian has been her sole caretaker since 2006.

Hi Igloo: Indiana has title companies. I don't know why Vivian and her mom couldn't just go to a title company, have them do a title search on the property and then have Viv's mom sign a Warranty Deed, deeding the house to Viv. The title company could issue a title insurance policy to Viv showing free and clear title. Is this what you mean by Quiet Title.

In my humble opinion, I don't think it makes sense for Vivian to pay market value for a house that her mom plans to leave her. Her mom has the right to leave her house to whoever she wants or give it to whoever she wants.

Vivian, you could call a local title company as ask some questions about how best to transfer title in your location and also about the cost of a property search and the issuance of a title policy. The title policy that the Title Company issues will prove that you have clear title to the property. It's also possible that you could have your mom deed the property to you while reserving for herself a life estate. That means it's hers until she dies then it's yours. Call your local Title Insurance Company and ask about it.

Just my thoughts, Cattails.

Cattails - I don't know enough about how the length of family care taking is evaluated. I didn't do that with my mom. But I did pay for to have an aide when she was in IL, the cost of which I will claim against the state's tally for her NH care as the aide kept her from going into NH for several months prior to her admission. Each state seems to have their own twist to Medicaid Estate Recovery and what is an exemption and how the state does it's death laws makes a huge difference - like liens vs claims. Like for TX, Merp is a class 7 claim so there are 6 other classes ahead in the check out lane so MERP is low in TX but still happens. Viv should really work with an attorney in her state to see what the best option is.

I've seen a lot of problems with QC deeded property, after H.Katrina I did helping with folks sort through dealing with fema & sba. You want madness, deal with those two, makes a state Medicaid system a cakewalk. What kept on cropping up was the house (that was flooded in NOLA or vaporized on the Gulf Coast) was so often inherited generationally and done via a QC or better yet never gone through probate. Well 8 out of 10 times the title was clouded so the property "owner" couldn't get loan or grant because they didn't hold a warranty deed to the property and so no clear title or proof of ownership. With QC deeds there is NO warranty. The property could have liens or judgements or clouded title or any other claims to the property and still get a QC deed. The person who does the QC might not even be the owner of the property but is deeding what they think is their ownership. If you should ever need to use the property as collateral or get a mortgage on the property - say you want to build on it years from now and need a loan (mortgage) to do it - mortgage companies and banks won't usually accept a QCD as there is no assurance of good title. Also should you want to sell it later on and the buyer needs a mortgage to buy it, most mortgagee's will not loan on a QCD property as there is no guarantee (warranty) as to ownership. So you end up having to do a quiet title done - they are not expensive (about 1,500) but take time because of the legal postings needed which queers the real estate deal. Now the QC can work if the owner (the QC "grantor") bought the property and has a valid release of the Deed of Trust and really has never ever done anything to cloud the title and there are no other possible owners or folks to contest the QC but I'd still go an run a quiet title afterwards. I've had a home QC'd to me in a divorce - that situation works as the mortgage doesn't change, but the DH does (lmao).

I do think that Viv needs to be compensated financially for her caregiving plus gets her to have some $ on her own and her mom's income is large enough to allow for that - having an attorney to do a personal services contract does that. Personally I prefer the idea of paying a fair but as low as possible price for the house and owning it as doing that totally deflects any siblings ever saying but mom gave you the house for the next 20 years plus helps on getting your credit worthiness going.

Hi Igloo: Viv has been living with her mom for the past 6 years and has been her caregiver through all of that time. Isn't the house protected from Medicare recovery as a result. If Viv's mom QC the house to her and also updated her will to mention the years Viv has lived with her as her sole caregiver, would that help? Cattails

Here's my suggestion:

1.Do a binder with all the reno items - receipts, and outline of what was done. Take "after" pictures (stage it and make it look especially nice) and put them in the binder. Go through family photos to find ugly "before" pictures and put in binder. Do a ledger of what was spent, with the credit card documentation and when the CC was paid by check from mom's account. have all this done before you see the attorney. The attorney can figure out a renovation contract your mom can do to you on all this so it's legal and you should get some sort of credit for supervising the reno.

2. She get's $1,800 - that;s great and property is only 85K, even better!. I'd still get an appraisal done if you think it's worth 10% or more less. If you can document that it is really worth only 60K that is huge difference in your costs to buy the house and if the absent siblings come back later on this you have documentation to shut them up. You want to get this done soon. If it comes back at more than 85K then you don't do anything but put the appraisal away.

3. But the 1st priority is to get all legal moved from your absent sister to you and do it ASAP. You need: DPOA, MPOA and the "Guardian in Case of Incapacity" and a will or codicil to the old will done.

You can save time & $ at the law office by having all needed documents with you - that would be your mom's current legal ID, your parents marriage and divorce information, your dad's death certificate, any and ALL information on their kids and their birth info. Legal description of any property owned (like parcel # 12345 aka 6789 Main Street) and the released Deed of Trust. If there was prior marriages that information as to dates and children. Condense it so that it is a page or 2 at the most (Mother - Ann Smith -Maiden - Jones; DOB 5/30/38 Dallas, TX.) The attorney will keep this in their file. So put on your best Nancy Drew and find this stuff.

4. Then the "personal services contract" - the attorney can do that. At $ 1,800 a month that's very doable for mom to pay you and still set aside money for all her expenses related to the house and her needs and health care.
Remember to get home health care estimates to use for your baseline.

Then talk with the attorney about what's better: the sale of the house to you to be done after a few months when you have saved up enough to do a real downpayment so this is all legal and a true sale OR doing a quit claim of the house to you and the issues with siblings especially Mz Karioke. Remember you are starting a long term relationship with the attorney - you may need them later on to deal with your mom's estate in probate and any other future problems. If you don't understand, ask. Often the attorney will have paralegal(s) that does all the intake and processing and is super knowledgeable - so remember their names and email address. Good luck.

Wow!!! So overwhelming. The last paragraph was the plan, but when has life ever gone according to the plan? There are 3 of us here. My oldest brother was physically and mentally abused by my father. He has never been able to keep a job because of anger issues. He had 11 yrs of sobriety, but started drinking again a couple of years ago. My dad operated a garage on the property in the sixties. He tinkers around in the garage trying to make a living, but really just makes enough to keep him in the bar 3-4 nights a week. He occasionally gives $50. for electricity that he has run off the house. My mom feels guilty for the abuse and cannot bring herself to show tough love. He has been taking her to church for the last 3 weeks, it helps ease his guilt because he knows he is not doing right by her. I didn't really want to get into dysfunctional family but I thought it was important to shed some light on the dynamics going on here. Mom's income is roughly 1800. She was paying me 250 a month for my needs. I charged on my card renovations for the house. New vinyl flooring throughout (looks like hardwood). We had carpet from the 70's in the kitchen!!! New appliances, countertops, hepa-filters, toilets, sinks, and paint. Labor was free from the next door neighbor and his son. Mom had to layers of rotten carpet in her bedroom. I took my allowance to pay for the reno, but the mistake I think I've been making is using her checking account to pay the credit card bill. This all really doesn't matter unless someone decides to put their claws out. The last tax assessment was around 85,000, and we payed less than 200 in taxes. I was afraid to put the house in my name because of the taxes. My sister lives appox 12 miles from here and came out about once a month. She has been POA since 2005 when my Mom had back surgery and MRSA, She has always agreed that it is to be turned over to me we just never got together to get it done. Three months ago I told her I didn't want anything to do with her because she couldn't make the time to give me 1 day a week off. She is a karioke DJ on Fri and Sat night. Children are in their 20's. Anyway she ripped me to shreds. So if its not taken care of right away I anticipate trouble. Once again I feel like I'm off subject and babbling. Thanks you so much!!! If you have any more advice with this information its greatly appreciated. I love everyone on this site it has been my sanity. Vivian

Well there are a couple of options.
If there is no likely Medicaid need, a QC can work although no warranty with QC.
So you have to have trust with owner or knowledge of the property history. I'd do a quiet title action after the QC has been done just to be safe on no problems.
But maybe Vivian could buy the house?

Now Vivian are you able to draw SS or SSDI on your own or is it the situation that your mom's SS & retirement is supporting the both of you? You say you are not working other than taking care of your mom, correct? So I'm going to assume your income is zero & mom's house is modest. My comments are based on that.

Let's say mom's situation is income (SS and retirement) 1K a mo, mom owns her home modest outright, the house costs 4K a year (for insurance, taxes, utilities etc). So mom has approx $ 660 a month/8 K a year. She does a personal services contract to Vivian for $ 100 - 150 a week (yes, that's low but mom doesn't have that much income to spare once you figure in her annual costs for not only the house but health care). Viv will get a 1099 from mom and pay taxes but all that is minimal. Viv will set aside a bit of this income for a real downpayment and after that is saved up then will use the weekly "paycheck $" to pay for the house - now Viv and mom can set the terms to be whatever as mom owns the house outright. This is a private sale remember. So value is 100K, she can sell it to Viv for 100K but the terms are $ 200 or whatever Vv can afford a month for forever or $ 200 a month and 20 hours of yard work.Remember you will have to pay for house expenses and likely face a higher taxes if you are under 65 once you buy the house. An attorney needs to structure all this as it is sticky but can be done.

Viv you can contact 3 home health agencies to do an assessment on mom and use the estimate they give you to get a baseline cost of taking care of mom too.
Believe me it will be lots more than $ 100 -150 a week. This is good documentation to keep just in case Medicaid is needed later on too.

I'm going to assume that the house is modest and the tax assessor value is low. Viv - go on-line to see what comparable homes are assessed at. If mom's is high then you need to file and appeal to get it reduced and find something amiss with it -
foundations & roofs are good and if it is an old house there will be foundation & roof & wiring issues. Getting the assessor value down is good but what is even better is to pay an appraiser to do a valuation on the home that comes in significantly below the assessors value. Viv this should cost about $ 150 - 300 and you would pay for it as the "buyer" . This figure you will have just in case mom needs to go on Medicaid and you face a possible penalty for the sale of the house at below the tax assessors value. You use this to document why the lower price.

Viv a lot of this is about how to deal with blowback from Medicaid if she needs to go that route for her care if your mom needs to go into a NH and is able to qualify for Medicaid to pay for it. As Jeanne said there is a 5 year look back on Medicaid. If you think you will be able to take care of mom at home with you as the caregiver and perhaps have her on hospice with respite care which Medicare pays for, then it's not an issue. In many ways this could be the best of a difficult situation for the both of you. If Viv doesn't have any income, she kinda needs to continue to be mom's at home caregiver as mom is the only source of guaranteed income.I would imagine there are so many many mainly women out there in this difficult situation. Viv it sounds like your mom is an agreeable type and the 2 of you work well as a unit. Sad about the siblings - Jeanne made a spot on comment on another post about how you kinda have to think as a only child when making decisions when the siblings are absent. She is so right. Best of luck.

Igloo, what about the possibility of needing Medicaid soon? If the QC turns the house over to daughter for $1, will that be a problem? Or does the fact that she has been living in it, caring for mother, and thus preventing her from needing NH placement impact that?

I didn't mean that Vivian should have to pay for the house, just wondered about the Medicaid ramifications of QC va will in this case.

I always respect your answers and I'm curious about this question.

Thank you so much Igloo, I really wanted to hear from you. What about the fact that I don't have money to pay for the house in a quick-claim deed?

Thank you Jeanne. I was really hoping I would hear from you. I've seen your posts and know you are knowledgible in legal matters. My mom does have legal services with my dad's pension. Her short-term memory is not what it was, but long-term is fine. My siblings are not aware of this, because they are never here. I did not realize we could not do this without my paying house value. That is a problem since I have been unemployed so that I could care for her. My mom is currently in the hospital recovering from pneumonia, congestive heart failure and a unrinary tract infection. I don't really even want to type this, but I fear this happening to her again. I don't think she will have the strength to fight back.

Do an end run that takes care of both.
QC the home and have her do a codicil to her will that leaves all and everything to you, and only you. Also if you do not have DPOA, MPOA done, get that done too when you update the will. Whatever you do, have the payment for the attorney and any other legal costs paid for by mom from her checking account and her signature on all. That way it does help to deflect the possible future comments on that it was a coerced document that you paid for and you solely benefitted from.

Thank you so much for your advice. I wish I had taken care of things before my sister and I severed our relationship with one another.

If your mother may need to apply for Medicaid within the next 5 years, you can run into problems if she gives it to you or sells it to you for far less than its value. If she has enough other resources to pay for her own care no matter what, then that isn't an issue.

What your mother wants to do with her house or any of her resources does not have to be agreed upon by all of her children. Her property, her decisions. But it if is not put in writing in a way that would stand up under legal scrutiny that is asking for conflict down the road.

I hope that an expert on this site will give you an answer about the best way to transfer the house.

It is better to quick claim rather than go through probate and have to pay the taxes, or rather than that, have the state take the property from your parents to pay for their long term health care, and they WILL take it. You must get this done while your parents are still of sound mind or you may run into problems. Make sure, if you have any siblings, that you all agree, and put it in writing.