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Mom deeded her property (in North Carolina) over to me (her

daughter which included a lifetime...
Mom deeded her property (in North Carolina) over to me (her daughter which included a lifetime for herself (mom) in August of 2009. Around the last of September of 2009 she was declared partical incompetent by and was given a guardian. Does the property still belong to her or does it belong to me (her daughter)?
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Answered in 6 minutes by:
10/2/2011
lwpat
lwpat, Attorney
Category: Landlord-Tenant
Satisfied Customers: 25,387
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Thank you for your question and for using JA. Please click accept so I will receive credit from JA for my time.

I am assuming that your mother is deceased and if that is the case I am sorry for your loss. When the party with a life estate passes, the property automatically goes to the party called the remainderman which in this case appears to be you. If that is the case, then you now have full ownership of the property in fee simple. You do need to record the death certificate with the clerk of court at the registrar of deeds. I am not sure what is happening with her estate. If she is deceased the person is not called a guardian but either the executor or personal representative and that would be in the probate court. If there is a probate action you should have been properly notified and if she had any other property it would be distributed through the probate court.
lwpat
lwpat, Attorney
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Customer reply replied 6 years ago
Mom is still alive. We went to the courthourse in July 2011 and found that the tax office has her as deceased. I am questioning if the property can be taken from me when she deeded it before she was declared partial incompent?
Unless there is some valid reason, the answer is no. However, the transfer may make her ineligible for Medicaid since there is a five year lookback period for gifts.

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lwpat
lwpat, Attorney
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Satisfied Customers: 25,387
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Customer reply replied 6 years ago

I was told that there was a five year waiting period for medicaid for the action of the property being deeded over to me before the partial declaration. I had already been to medicaid to file the papers to see if any gifts had been transfer within three years. Nothing had been done of that nature. Does she still qualify for medicaid in this situation?

I assume that the deed to you in 2009 was a gift. If that is the case, then she would be currently ineligible for Medicaid. The three year period no longer applies, it is now five.
lwpat
lwpat, Attorney
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Satisfied Customers: 25,387
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Customer reply replied 6 years ago

The transfer of deed was overturned by a judge so that mom can get medicaid. He stated that mom was incompetent in August 2009, before she went to court. Mom currently gets medicaid. Is this legal?

It is legal since the judge said it was legal. A judge is the person that decides whether something is legal or not. It appears that someone else has been appointed by the court as her guardian. If that is not the case, then you can apply to be her guardian through the probate court system. Then you could buy a small portion of the house and make it joint with the right of survivorship. That is what should have been done to start with and then you would not have this problem. It appears that your attorney at the time gave you bad advice. However, even that might now be overturned by Medicaid estate recovery if they decide to come after the house but since it would pass outside of probate there is a chance they might not. In the meantime the house can be rented and the funds go to your mother for her needs outside of Medicaid.
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Customer reply replied 6 years ago
If I had the house built and later deeded it to mom and dad. Then, dad deceased and mom deeded it back to me, is that a gift?
That is a gift. When you deeded it to them you should have remained on the deed as a joint tenant with the right of survivorship, then there would be no problem. As I said, it appears that your attorney gave you some bad advice. Sorry.
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Customer reply replied 6 years ago

I applied for guardianship twice, and twice the clerk appointed someone else. First he appointed my brother and sister, second, he appointed DSS, third, her appointed my sister in FL, (she was made to bring mom back and put her back into her home), and now, the clerk of court appointed DSS again.

Mom is still residing in her home and I hear that DSS is planning to put her in a home again. I am not allowed to see her unless I am supervised by someone from DSS. So, I am asking can DSS take over the house and place restrictions on me for this is my property?

Unfortunately they can take over the house. The judge has ordered that it is not your property but that of your mother. If DSS has guardinaship, then they control the property and can evict you if you are living there. Sorry but that is the law and I do not make the law, only tell you what it says.
lwpat
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Satisfied Customers: 25,387
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lwpat
lwpat
lwpat, Attorney
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