I am the POA and sole beneficiary for my mother. She owns a house in Florida with a morgage on it. In order to avoid any problems upon her death should I add myself to her deed? The house is her only asset. How can I avoid probate? Someone told me to use the term "or" when adding my name. Can you help?
State/Country relating to question: New York
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Good afternoon. You can avoid probate one of three ways...i) You can create a living trust for your mother and have the property transferred to the living trust. Then when she dies the trust agreement controls and since the property is in the trust, it is not a probate asset. ii) You can put your name on the deed by quit claim deed as a joint tenant with right of survivorship...which causes it to automatically vest in you upon your mother's death. iii) You can transfer the entire property to yourself now and reserve a life estate for your mother which automatically terminates upon her death. Both ii) and iii) are accomplished by quit claim deed which would be signed on mother's behalf as POA, then be witnessed and notarized, and recorded in the Real Property records in the city/county in which the property is located. You have the power to do this under the POA. If there were other heirs, you would have to worry about someone contesting you transferring the property to yourself as a breach of fiduciary duty, but since you are the sole heir and their are legitimate reasons for taking this action, you should be fine.
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What is the "or" idea? Upon death what happens with the morgage, does it just pass on to me. I think her will is a trust. I am going to check.
I'm so sorry for the delay....afternoon run!
Each of these are mutually exclusive...you would do i) , ii) OR iii). And, yes, the mortgage lien stays with the property...you would not have personal liability, but the lien would remain the same and if your mother's estate was not sufficient to pay it in the event of a foreclosure, you would not have personal liability for any shortfall.
this is my last question before great rating! I read that we could keep my mother's name on the deed and add "or" and my name to avoid probate. Maybe I wasnt clear... Have you heard of this? When she passed could I continue to pay the morgage or would I have to pay the whole morgage at one time. Thank you again!
Just adding the "or" will not be sufficient. You will want to add your name as a joint tenant with right of survivorship. Upon her death, it will depend upon the lender...most allow the mortgage to stay in place if the payments are made; but under the loan documents, the lender will have the right to call the loan which would require that you refinance it.
And, thanks so much in advance for the great rating! I appreciate that!
Texas lawyer for 32 years; Also RE developer
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