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Our Weekly Question & Answer
Column about MA Law
(We post a column every Monday, based on
questions posted in the Forum's Chat Room.)
May 12, 2008
[After my mother’s death, my father made a will] leaving everything to me. (I have a brother 10 years older then I am). I now pay all the bills, and taxes on [my father’s house.] We have no mortgage, but my father has an equity loan which I pay for him every month. My question is: does Massachusetts law allow me to take my mothers name off the deed to the house and have mine put on with my fathers? And if my father passes away, am I responsible for paying inheritance tax? I don’t mind paying what I’m supposed to, but there is a lot of land here, and I can’t afford to pay it all at once. Also can my father’s family (brother or sister) whom we haven’t seen in 20 years, lay claim to our home? (Posted by Maraty on the Forum Chat Room.)
The following response was posted by Attorney Peter Bernardin: Assuming that your mother and father owned the real estate either jointly or as tenants by the entirety, it is a relatively simple matter for your father to transfer an interest in the real estate. He will need to record an original death certificate, a new deed, and he should record a document to release the MA estate tax lien (an Affidavit or a form M-792).
I do not usually recommend an outright transfer of the real estate. I prefer either a simple living trust or perhaps a deed with a "retained life estate". Both approaches allow your father to avoid the probate process (just like joint ownership would), but with more flexibility and protection for your father.
Your father really needs to work with an attorney on these matters because the type of transfer you describe can result in disqualification from MassHealth (Medicaid). There are also some income tax issues that should be fully explored before your father makes any final decisions.
I assume that you live in Massachusetts - so your father's estate will only be subject to a federal estate tax if the value of the gross estate is more that two million dollars (in 2008). His estate will only be subject to a Massachusetts estate tax if the value of the gross estate is more that one million dollars. From the information you provided I have no way of knowing what estate tax will be due, if any.
Your father's family would have a hard time establishing standing to object to his estate plan or his lifetime gifts. Your brother, on the other hand, would have standing and therefore would be able to object. That does not necessarily mean that he will be successful, just that he could make your life difficult. Therefore it is very important that everything is done correctly. I Hope that helps. If your father's attorney does not specialize in estate planning, then have him work with an attorney who is a specialist. You should be as far removed from the process as possible so that your brother cannot allege that you (rather than your father) made all the decisions.
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