How Can Parent Protect Rights After Transferring House to Child?

 In Asset Protection

Question:

My mom is going to transfer the deed of her house to my name only, but she would like some kind of agreement that she can live in the house for as long as she lives, almost as a co-owner. Is there a document we can fill out to protect her rights?

Response:

There are a few options, including the following:

  1. Your mother could maintain a life estate in the property, giving her the right to live there for the rest of her life. This, in fact, supersedes your right to live there. It may give you and her certain tax benefits both while your mother is alive — a senior abatement on real estate taxes — and after she passes away — a step-up in basis.
  2. A right of use and occupancy. This would be a written document similar to a lease. It’s not quite as strong as a life estate, but does give your mother legal rights.
  3. A written agreement between you and your mother. While your mother likely would never enforce this in court, it provides you the opportunity to spell out your intentions regarding a number issues, such as who is going to pay for what and what happens if your mother becomes disabled or if you decide to move and sell the house. You also could have a written agreement covering these issues along with any of the other options.
  4. A trust would permit you and your mother to divide or share your rights to the house as you see fit.

As you can see, the options and the pros and cons of each can get complicated. I would recommend that you and your mother consult with an estate planning, elder law or real estate attorney on this. If you came to my office, I would want to know why your mother wants to transfer her home to you. What is she hoping to accomplish? I’d also want her to understand the risks — what happens if something bad happens to you — bankruptcy, illness, divorce, death. Once we understand your mother’s goals and she understands the options and risks, she can make a choice as to the best approach.

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