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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 12825
Experience:  B.A.; M.B.A.; J.D.
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My husband recently passed away, his mother is in nursing home,

Customer Question

My husband recently passed away, his mother is in nursing home, her niece that lives out of state is trying to get her to change her durable power of attorney and designation of health care surrogate. The only thing that my mother in law has is her house. My husband had our names added to her home before he passed away with a life estate, my husband and I have taken care of his mother and the house, taxes, property insurance, maintenance etc. for years. If we didn't have great interest in the property I wouldn't be writing. Now that my husband isn't here she wants to sell the property. With her being in a nursing home, on medicare and medicaide wouldn't medicare receive the money from the house ? Can she take our names off of property ? Is there ANYTHING I need to do or start doing to protect the investment that my husband and I have done ?
Submitted: 11 months ago.
Category: Family Law
Expert:  Phillips Esq. replied 11 months ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.


Have you carefully reviewed the deed?

is there a provision that the person who owns the life estate can sell the property or mortgage it?
Customer: replied 11 months ago.

Originally only the mother in laws name was on deed. Did not know there could be a provision on life estate, the attorney never said anything about a provision. On her living will, health care surrogate and durable power of attorney they all have our names listed.

Expert:  Phillips Esq. replied 11 months ago.
Okay. Kindly, pull the deed, review it, and get back to me.

Life estate usually has restricions on what the holder can or cannot do. So, it is very important that I get this information in order to properly assist you.

I am so sorry for your loss.

Hopefully, I can give you some good news.

Customer: replied 11 months ago.


I do not have the deed, would I be able to get deed from court house ?

Expert:  Phillips Esq. replied 11 months ago.
What county is the property located?
Customer: replied 11 months ago.


Duval County

Expert:  Phillips Esq. replied 11 months ago.

Thank you.

You can obtain a copy of the deed from the Duval County Clerk of the Court's Office. Click on the link below to start your search:

http://oncore.duvalclerk.com/Search.aspx

Customer: replied 11 months ago.


Thank you so much ! But really don't understand wording, " the grantor, in favor of mother -in-law for life estate, without any liability for waste, and with full power and authority in said life tenant to sell, convey, mortgage, lease or otherwise manage and dispose of the property described herein, in fee simple, with or without consideration, without joinder of the remaindermen, and with full power and authority to retain any and all proceeds generated thereby, and upon the death of life tenant, the remainder, if any, to the Grantees", son & daughter in law , husband and wife, as tenants by the entirety. Sounds like I'm in the dark. Can I put a lien on the house for the expenses that we have paid ?

Expert:  Phillips Esq. replied 11 months ago.

Thank for the information:



Thank you so much ! But really don't understand wording, " the grantor, in favor of mother -in-law for life estate, without any liability for waste, and with full power and authority in said life tenant to sell, convey, mortgage, lease or otherwise manage and dispose of the property described herein, in fee simple, with or without consideration, without joinder of the remaindermen, and with full power and authority to retain any and all proceeds generated thereby, and upon the death of life tenant, the remainder, if any, to the Grantees", son & daughter in law , husband and wife, as tenants by the entirety. Sounds like I'm in the dark.



Response: Wow! Not good news at all here. Your mother-in-law's Power of Attorney can sell the property without your consent. The Life Estate Deed gave your mother-in-law the authority to do anything she wants to do with the property without your consent or consent of your late husband.



Can I put a lien on the house for the expenses that we have paid ?




Response 2: It is a bit complicated. You would need to sue your mother-in-law for the expenses and then if you prevail you can attach the property. However, you may file an ex parte motion for pre judgment lien/attachment to protect your interest in case of a sale. If the Judge allows your Motion, lien would be placed on the property making it difficult for the Power of Attorney to sell the property. Then the Court would schedule a hearing on your Motion. If you persuade the Judge that you would prevail in your lawsuit against your mother-in-law for the expenses, the Judge would allow the lien to stay on the property. Otherwise, the Judge would order the lien released.



You need to retain the services of a local real estate litigation Attorney to assist you with the case. You can use the following sites to find local Attorneys:


http://www.lawyers.com



http://www.justia.com



Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 12825
Experience: B.A.; M.B.A.; J.D.
Phillips Esq. and 11 other Family Law Specialists are ready to help you
Customer: replied 11 months ago.

We are her Power of Attorney, but I guess what my husband did was a waste of time and more money.


 


Really appreciate all of your help and direction Mr. Phillips !! You were more help than our attorney. Can't believe this has happened :(

Expert:  Phillips Esq. replied 11 months ago.

We are her Power of Attorney, but I guess what my husband did was a waste of time and more money.

Really appreciate all of your help and direction Mr. Phillips !! You were more help than our attorney. Can't believe this has happened :(

Response: Oh, I am sorry for the mix-up. I had assumed that the niece is now Power of Attorney. So, there is some hope here. If your mother-in-law is not competent to execute another Power of Attorney or Health Care Proxy, then you can challenge the Power of Attorney given to the niece if she manages to get one done. You would need a probate litigation Attorney to help you with the challenge. You can use the following sites to find local Probate litigation Attorneys:


http://www.lawyers.com

 



http://www.justia.com

Your Attorney should have explained the consequences of the life estate to you and your late husband. I seriously doubt that if proper explanations were given that your late husband would have agreed to give his mother a life estate without restrictions. He would have opted instead for Joint Tenants with Right of Survivorship meaning that at the death of his mother and his, you as the sole survivor of the joint owners would be the sole owner of the property.

Let me know if you need anything else and thank you very much for the positive rating.

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