How Can We Protect Mother Transferring House to Child?

 In Long-Term Care Planning, Practical Matters

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 can 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 certain tax benefits both while your mother is alive — a senior abatement on real estate taxes, for instance — 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 and can be recorded at the registry of deeds.
  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 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. But before you and your mother consider them, my first question is why your mother is giving you her house? Do you plan to live there with her? Your answers to these questions could lead to the appropriate answer as to what type of protection to provide your mother. I would recommend that you and your mother consult with an estate planning, elder law or real estate attorney on this.

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