When my father became intubated on May 16, 2016, I executed and notarized two separate Deeds, a Transfer on Death Deed and a Grant Deed for his home as I was not clear on which one to use to avoid a lengthy probate. As his DPOA, he gave me authority to "execute a deed or other instrument of conveyance" regarding the home. He passed away on May 23rd, 2016. I was unable to record either as I was at his bedside until he passed but they were both notarized. Which document would you suggest I file to transfer the property?
Record the Grant Deed. Just be sure you have proof he was not unduly influenced by you when he acted as he did. Other family members may not be convinced.
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The way you handled it, can be construed as undue influence. Consult an estate planning or probate lawyer to take corrective action as soon as possible. Sorry for the loss.
You should immediately speak to an attorney experienced in this area of the law. You don't say to whom the grant deed or transfer on death deed gives the home. A DPOA cannot make gifts to himself unless the DPOA agreement specifically permits gifts. Also, a DPOA agreement doesn't survives the death of the principal. The home now belongs to your father's estate, not your father. Since you have two deeds, any action by you now that your father has passed is beyond your authority. It is up to the executor to make decisions for the estate.
You can record the Grant Deed; however, you are opening yourself up to a vicious lawsuit if there are other beneficiaries out there. Given the way this happened, you can protect yourself by allowing the Probate process to take place. I am sorry for your loss, but given what you are going through at this time, the last thing you want is to be sued for undue influence and elder abuse. Therefore, before you record the Grant Deed, I highly recommend you consult with a probate attorney first.
I am sorry for the loss of your father. You should see an estate planning or elder law attorney in your area. While the Grant Deed is better, you will want to make certain it was prepared properly. As others have stated, there could be claims of undue influence.
Transfer by way of transfer on death deed will allow for a step up in basis which, if you plan to sell the property shortly you will save capital gains tax. If you record grant deed you take you father's basis.
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