Category Archives: Elder Law

Do I need a new deed now that my wife died?

Q: I recently lost my wife to brain cancer and our house is in both names. Do I have to do anything to remove her name or wait until I sell the house? She had no will or anything and wondered does everything just get put into my name as far as any belongings in the house? Wife’s family brainwashed our son who filed a false police report in hopes to have me arrested but because that did not work and DCP was called in, in-laws and son took me and wife to court while she was on hospice. I can’t trust them with anything at this time. They did not even visit my wife when they live a mile away and cared less about her after she was diagnosed with cancer 5 years ago. I now live alone in house but always think something can happen when I am not home. (Pittsburgh, PA)

A: In PA, deeds titled in the names of husband and wife are held as tenants by the entireties. This means that both spouses hold an undivided interest in the whole, as one. Unlike with joint tenants, where on tenant dies, and the survivor tenant inherits their half, the surviving entireties tenant still owns the whole as he did before, now only in his name. It is confusing but if your deed lists you as tenants by the entireties, or as husband and wife, you probably are now the sole owner. And generally, there is no reason to execute and file a new deed. A deceased’s spouse name can remain on the deed until the house is sold by the surviving spouse. As far as any other property held in your wife’s name only that was not real estate held by the entireties with you, there could be concerns. If she died with no will that left everything to you, then property held in her name only, passes in accordance with PA intestate (no will) law. This means that the first 30k of her estate passes to you, the surviving spouse, and the balance is shared 50/50 between you and children of you and your deceased spouse. As for your son and in-laws, you may want to consider getting a security system or a Pit Bull or Rottweiler, as a roommate.

How can I pass an interest in my house to my children if my wife is on deed with me?

Q: I recently refinanced my home and deeded it as tenants in the entirety with my second wife. I have two adult children. I would like to have my children have interest in the property if I die before my wife. What is the best way to do this as she has no immediate family and I do not want the property to go to the state upon her death. (Valencia, PA)

A: Consult with a lawyer with whom you can share all the facts. If the house is now titled by the entireties, as husband and wife, the entireties tenancy can only be severed if the wife agrees to sign another deed, one of you dies or by court order. As tenancy by the entireties, your wife will inherit it from you when you die, and it will not pass to your estate. Therefore, you cannot pass it to your children in your will. The only way to pass an interest to your children is to draft another deed. I cannot advise which type of deed will be best for your situation, but the options would be to execute a new deed with or without your wife on it. Your children could have a tenant-in-common interest with you or you and your wife, or joint interest with you and your wife. You could also do a deed to your children with a life estate in the property granted to your wife. If she has a life estate, she can live in the property until she vacates the property or dies, then her life estate is extinguished, and your children’s interest becomes free and clear. You really need to consult with a lawyer who can advise after understanding all the facts. Additionally, you should seek approval from your mortgagee whenever you change the deed if there is a mortgage or HELOC in place.

How can I get power over my mom’s finances if she is incapacitated?

Q: My mom has fallen ill. They put her in a coma. How can I take charge of her bills to keep her house going? There is no living will or power of attorney. She receives social security and pension checks. (Ligonier, PA)

A: If she is not competent to sign a POA, your only recourse is filing to be her guardianship. You should review all the details with an attorney.

My brother as former POA is not releasing funds. What do we do?

Q: My mother revoked his POA. He was refusing while fiduciary and now that it’s revoked continues to refuse her physical property’s return to her. She was deemed fully competent by her doctor. (Pittsburgh, PA)

A: If she is competent and has revoked her prior POA, your brother should not be acting on her behalf. If he is doing so and she is opposed, it could constitute a crime or be actionable in Civil or Probate Court. I would consult with a local WV lawyer. In the meantime, if this hasn’t been done already, send the brother a copy of the revocation by certified mail and make sure all persons or entities (banks, financial institutions, etc.) have a copy as well.

How can I be removed as guardian?

Q: I am permanent guardian of the person and estate for a 50-year-old adult son with mental illness. However, he can and has acted independently to get jobs and credit cards. It has become almost impossible to track his spending and I question if he is legally incapacitated. At I minimum I cannot handle the guardianship any more. I also receive no compensation for it. He is no longer under the auspices of the mental health system but is in jail with a potential mental health commitment for competency. (Pittsburgh, PA)

A: If you have been appointed guardian of his person and estate, you can petition the court to appoint a successor guardian. Unfortunately, you will need an attorney to do this. You might be able to find an agency to take over but without knowing more, I am not sure what agency would accept him for services. If an agency would step in, they may be able to handle petitioning the court to have you removed and replaced. The interest of an agency will increase if he is collecting disability or if there is some other source of income for him.

Can the government take my parent’s home?

Q: If my parents sell their home to their children within the 5 years? How does the 5-year issue work in Pennsylvania? (Munhall, PA)

A: PA manages its Medicaid program through the PA Department of Human Services. Under Medicaid regulations, any transfer of an asset by a Medicaid applicant for no consideration (i.e., gift, $1.00, under market value, etc.) within 5 years preceding a Medicaid application, can cause the applicant to be ineligible for Medicaid benefits to the extent of the fair market value of the asset transferred. You say your parents sold the home. If it was a legitimate sale for fair market value, it would not rule your parent’s ineligible. If the proceeds of the sale went to your parents for their living expenses, which should be easily documented, there should be no problem. I suggest consulting with an attorney to review this sale before you do it.

What documentation do I need to obtain a Short Certificate?

Q: Both of my parents have recently passed. first my mother, then my father within an eleven-day span. I am the executor of the will and want to proceed in filing out whatever forms need to be filed and to carry out the will. I just need to know exactly what information to take to the courts to obtain the short certificate and be named legal executor. The only assets that my parents have left is a bank account with about $3000 in it as they were both in an assisted living facility before there death. (Pittsburgh, PA)

A: If there is only one asset as you mention, and it is in your parent’s name, you will not have to open an estate. Per statute, the bank can release less than $10,000.00 to certain next of kin if a paid funeral receipt is produced. There will be inheritance tax owed. Also, you need to be aware that if your parents received Medicaid, this money may not be free and clear to disburse. If this matter is a simple as you state, an attorney can assist you in getting the money and prepare an inheritance tax for you at a modest fee.

What are the inheritance laws if parents give house to child under 18?

Q: My mom is trying to buy a house soon. She wants to hand down the house to me and my brother in the event something happens to her. Since I’m 26 and he’s under 18, how does inheritance tax and exemptions work? If he were to be still under 18 in that event, would he legally be able to accept it? (Pittsburgh, PA)

A: Mom handing over a home to a 26-year-old and a minor may not be advisable. Additionally, I do not believe a minor can hold title to real estate. Your mother should consult with an elder law attorney who can assess her entire financial and personal situation and recommend the best options for her. Perhaps putting the house in a revocable trust is beneficial, but no one can tell without more information. The inheritance tax rate for children is 4.5% and it is practically unavoidable unless mom transfers the house out of her name altogether. Whether the potential consequences of doing that is advisable given the low rate of inheritance tax would be her decision. Additionally, not knowing the entire picture here, your mother should be advised of Medicaid implications with such transfer if she will potentially need Medicaid coverage in the next five years.

What form do I use?

Q: What form would I use to request outpatient treatment for my father who is incompetent?

A: More information is needed to fully advise you. However, most people who need to act on behalf of another person, require a Power of Attorney. However, if the person is not competent to sign one, this will not work. In that situation you may need to become his legal guardian through a court proceeding. If a service provider will act on your request without either because you are next of kin, you may not need to be guardian for that specific purpose. Ultimately however, you may need to be appointed as his guardian.

Can I record conversation to prove elder abuse?

Q: We suspect our feeble but mentally sound grandparent is being emotionally and financially blackmailed by a private home caregiver who has recently come onto the scene. The grandparent has become somewhat secretive and it has been very difficult to meet this “caregiver”. They have begun a legal contract together regarding care of our grandparent. Upon death the caregiver will receive an overly generous financial gain. There are several requests that the caregiver has made that are illogical and very concerning to have in the contract to gain legal power over our grandparent. Our grandparent has started to withdraw from family since this caregiver has come along. The grandparent is acting out of character & trusts the caregiver. Our grandparent has already been influenced by the caregiver in a way that has put their health/life at risk. The caregiver does not like to meet with family to discuss their arrangement. There are many red flags at this stage with this relationship and we are sick with worry. Can we record conversations without consent to help prove undue influence as it is so difficult to find other proof at this time How else can we collect proof regarding undue influence of an elderly person? (Pittsburgh, PA)

A: Not unless you want to take the risk of the caregiver filing criminal charges against you. PA is a two-party consent state. I suggest calling Adult Protective Services and have them do a home visit to assess the situation. Your grandparent can do as they wish if they are competent. However, if the caregiver is becoming an heir and receiving more than just compensation for services, something is wrong and there is a legal course of remedy based on the doctrine of undue influence. You could also make the local police aware of the situation. Some police have training in elder and may have suggestions as to what help they can provide.