If a home was gifted to your offspring and offspring dies, who now ownes the home when the gifter is still residing in the home?

Asked almost 2 years ago - Brick, NJ

This home was purchased in an adult community and the inhabitant was the original owner (mother). She gifted ownershp to her son, who has since died. He was married at the time of his death. Wife & mother have always been estranged. Serviving daughter in law believes she is the owner and is trying to force out her 86 yr old mother in law. Hm is still in son's name according to tax records and mother pays taxes, insur and all fees associated with home. Does she have any legal standing to gain back ownership of this home that she paid for??

Attorney answers (4)

  1. Lawrence A Friedman

    Contributor Level 18


    Lawyers agree

    Best Answer
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    Answered . This is a text book example of the risks inherent in gifting one's home (and anything else) when the donor wants use of the gifted home. With an outright gift, the donee becomes the owner and can do what he/she wishes. If the donee has creditor issues, the creditors may be able to seize the gifted asset or force it's sale. If the donee dies, the gifted assets pass to the donee's beneficiaries under will or to intestate heirs-- typically a spouse and/or kids. The donor has zero rights against the beneficiaries/heirs.

    A donor can preserve rights through a limited transfer such as deeding a home but retaining a life estate. However, this usually requires working with a lawyer with expertise in elder law and/or estate planning.

    There usually is no benefit to gifting one's home unless the gift is for purposes of Medicaid planning, but Medicaid planning is very complex and extremely dependent on individual circumstances. In many cases gifts are counter productive. Thus, it is crucial NOT to gift one's home or anything else to protect assets in case long term care may be needed except as a part of a comprehensive plan developed with an elder law attorney. Many articles on SpecialNeedsNJ.com address long term care planning.

    So to your specific question-- mom is out of luck and may be kicked out of her home unless mom can show that she retained legal or de facto rights to remain in the home despite the gift or that even though mom didn't retain rights son took steps to protect mom on son's death. Certainly many major issues inherent in your situation. The fact that mom has paid all the expenses could play in her favor.

    In short, mom is likely to have dire consequences unless she consults a top notch elder law attorney ASAP, but depending on the circumstances an elder law attorney may or may not be able to protect mom's ability to stay in the home.

    If you are interested, I'd be happy to work with you although my office in Bridgewater is a bit of a hike from Brick.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law... more
  2. Richard Albert Luthmann


    Contributor Level 14


    Lawyers agree

    Answered . The question is whetehr the Mom retained a life estate in the property or whether there was an agreement between Mom and Son as to occupancy of the premises and what those terms were.

    This answer is made for educational purposes only. By using or participating in this site you understand that... more
  3. Mitchell T. Grayson

    Contributor Level 7


    Lawyers agree

    Answered . No mention is made of a will or surving children I assume neither exists.
    Wife is entitled by statute to (1) 25% of her husband's Estate but not less than 50,000 nor more than 200,000 plus ( 2 ) 75% of the remainder. Mother receives the balance.Depending upon the value of the house and if husband had other assets wife may be entitles to all of house or % of house.you need to apply the above formula to value of house.
    Mother cannot take gift back just because son died.She can argue however that there was an undertsanding that she could live there for as long as she lived and if she can prove that then she can claim that she was frauduently induced to make the gift and /or that wife must abide by that undertsanding.

    The forgoing advise is just a general observation and may change dependinfg on your specific facts and... more
  4. James P. Frederick

    Contributor Level 20


    Lawyers agree

    Answered . It depends on the way the deed was set up. I would have an attorney review the deed to see where your stand.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more

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