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What is the difference between "living rights" & "life estate"?

Millers Creek, NC |

My mom is transferring deeds to my sisters and myself. What is the best way to protect her having a place to live but also to provide us with ownership now? She doesn't want anything in her name.

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Attorney answers 3


First, if your Mom has not sat down with an attorney who is Board Certified in Elder Law (I am not Board Certified, and I am not soliciting you to have her contact me), I wouldn't have her do anything yet. Medicaid planning (which is 99% of the reason people do these deeds) is very detail driven and extremely complex. THERE ARE ALSO SOME VERY BAD RISKS THAT COME ALONG WITH A PARENT DEEDING TO CHILDREN THAT MUST BE DISCLOSED.

That being said...a "Life Estate" is the appropriate term for the retention of "lifetime rights" in Real Property. The rights come with certain statutory obligations. The rights of the Life Estate owner are sometimes subject to the joinder of the "Remaindermen" (those people taking ownership immediately upon the death of the Life Estate owner). Don't listen to friends and neighbors...make an appointment with an expert.

Good Luck...

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James P. Frederick

James P. Frederick


Well said!


Stop, just stop and get mom some estate planning advice before she makes a huge mistake. In addition to the prior attorneys sound points, she also exposes you to extra capital gains taxes if she gifts these to you while alive. You lose the step up in basis by not waiting until death. Get advice from trained professionals or you will pay for it later.

Hope this helps.

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I'd proceed with caution. The opportunity of a 'Step-Up in Basis' is in fact lost if the Property is transferred to your sibling & yourself while your Mom is still alive. It would be protected if the home is in her Living Trust. That's definitely something to consider. Secondly, if she is trying t act ahead of time by pre-planning so that she (later) qualifies for Medicaid, then "timing" is a key issue here especially if she is in declining health. I'd definitely suggest your Mom sit down with an Elder Law Attorney and sort out her options. I absolutely concur about not listening to the advice of well-meaning but not legally qualified friends, neighbors, church members etc. She needs to meet with an experienced, competent, caring Elder Law attorney.

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