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My sister and I have Power of Attorney for our mother, who is in nursing home, and is not expected to live much longer. She owns

Walnut Creek, CA |

a home in Vacaville, CA which has depreciated to a value of about $100,000. Her will divides assets equally among four children, but she has next to no other assets. Can we do a Quit Claim and transfer her house to one of us using the POA? If we wait until she dies, her will stipulates our brother as executor. He lives out of state, so it wouldn't be easy for him. If my sister and I can do this before our mom dies, would that be the best approach?

Attorney Answers 4

Posted

This is not a good idea, for many reasons. Among other things, I cannot imagine that the POA allows you to make gifts to you and your siblings. Second, a gift of this nature would be considered a breach of your fiduciary duty to your mother. There are other reasons as well.

If your mother is still competent, it might make sense for her to make new estate planning documents that would simplify the transfer upon her passing. It may make sense to have your mother execute a simple living trust, for example. Additionally, your brother can renounce his right to be named executor when the will is probated, in favor of someone in California who can more easily administer the estate.

I strongly suggest you consult a good estate planning lawyer that you find here on AVVO or in your area. Your proposed use of the power of attorney is not a good idea.

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Posted

It depends on if the POA gives the right to make gifts.
Also-you might consider gifting to the four of you instead of just one.
Gifting has an impact on mediciad, taxes , and cost basis of property.
You should meet with an elder law attorney to develop your strategy.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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Posted

If your mother is in a nursing home, Medicaid directly impacts the disposition of the home - as Medicaid expects to be paid back for the $$$ it is putting out for her care in the nursing home. Additionally, making a gift of someone else's assets to yourself may very well violate the specific terms of the DPOA. I'd sit down with an Estate Planning attorney you can find here on Avvo and sort out the best way to proceed, given the facts. Good Luck!

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Posted

In addition to the other remarks, you lose a very valuable 'step up' in basis opportunity if you inherit the property instead of take it by quit claim deed. Basis would be raised to FMV from what she paid for the home. Even if the property is not worth what it once was, it is worth more than when she bought it, usually. I too question if you can do this with a Power of Attorney, whether you would not be breaching your fiduciary obligations and whether you will have Medicare, Medi-Cal concerns.

I am in Danville and would be happy to talk to you.

If you liked this answer, click on the thumbs up or vote it best answer! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville, California 94526-0008 Legal disclaimer: I do not practice law in any state but California. As such, any responses to posted inquiries, such as the one above, are limited to a general understanding of law in California and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.

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