Who owns this house now?

[justalayman]

Well, he is wrong

The title was clearly as joint tenants with rights of survivorship. That means when one party dies, the remaining tenants still have a joint tenancy with rights of survivorship. It doesn’t change. Then when either of those two die, it goes to the only remaining tenant


The only issue that is different in your situation is given it was a marital home and your father was married, does the wife have any rights to possession or ownership based solely on that.

I took a quick look (surely not exhaustive). I found nothing stating there are dower rights or anything similar.




A property cannot be titled as tenants by the entirety if there are more than just a husband and wife as owner AND it has to be owned by both husband and wife. Your mother was never an owner so your citation does not apply.

 

[mike spence]

All I can do is shrug at this point. Our lawyer still believes the state is wrong, but I think he is just going to give up.

On another note, who wants to explain a Directive to Pay to me? What would Medicaid think about this is my mother ever had to go into a nursing home?

 

[justalayman]

I m not going to address the directive to pay issue other than to issue a caution. I don’t know enough about that issue to give an answer but the directive to pay could be problematic regarding your mothers situation. She would essentially be giving away money that would be seen as rightfully hers. That may be a problem as it would be no different than having the money and giving it away. That may affect her qualification for any assistance she receives.

there are a couple here that understand the Medicaid system quite well. Hopefully they see this and chime in.

 

[Taxing Matters]

A property cannot be titled as tenants by the entirety if there are more than just a husband and wife as owner AND it has to be owned by both husband and wife.

It is, however, possible for a property to be owned by more than a married couple and the married couple still holds their interest in the property as tenants by the entirety. For example, Fred and Wilma could hold 50% of Blackacre as tenants by the entirety and have the other 50% held as joint tenants with a right of survivorship with Pebbles. In that case, should Fred be the first to die, all that happens is that Wilma then succeeds to the tenancy by the entirety share, thus owning the property then with Pebbles as joint tenants with a right of survivorship. The last of Wilma and Pebbles then to die would end up with sole ownership of Blackacre.

 

[justalayman]

It is, however, possible for a property to be owned by more than a married couple and the married couple still holds their interest in the property as tenants by the entirety. For example, Fred and Wilma could hold 50% of Blackacre as tenants by the entirety and have the other 50% held as joint tenants with a right of survivorship with Pebbles. In that case, should Fred be the first to die, all that happens is that Wilma then succeeds to the tenancy by the entirety share, thus owning the property then with Pebbles as joint tenants with a right of survivorship. The last of Wilma and Pebbles then to die would end up with sole ownership of Blackacre.

I can’t disagree with the married couples share, even if less than 100% of the entire interest in the property, can be held as tenants by the entirety. I can access much on the internet at the moment

I just wanted to make it clear that even for that situation to be present title, whether it be for the entire interest possible or a less than 100% interest in the property, must be held in both spouses names for tenancy by the entirety to apply. In the case at hand since the wife was never listed as an owner, the father’s share was not held as tenants by the entirety with the wife.

In other words; when the father died it automatically became owned by the son and aunt. As I stated previously it remains a joint tenancy unless one of those two remaining changed that

Then, when the aunt died the entire interest in the property became owned solely by our op. The mother has no interest in the property, surely not as an owner.

One of a couple things is going on

1. Guy at the state is simply wrong. Whether he misunderstands the facts or was given a different set of facts or is simply wrong because he doesn’t know better is not known.

2. Op has missed something that would change the answer (it doesn’t seem to be the case)

3. Op has failed to communicate all necessary info here and as such, the conclusions made here are incorrect


Based on what the op has stated, it appears, to me, that the guy at the state is simply wrong.

 

[Mass_Shyster]

On the ownership issue, it is the law of decedents estates, not the law of marital property, that controls. There is a specific exemption in the provision you cite regarding title by decent. The controlling provision is found at 20 Pa.C.S. Section 2104(7). The deed correctly recognized, in the language of grant, that (Dad's name) was a married individual thus providing (Mom)rights in the entireties to the real property upon his death. (Mom)'s title, in turn, was with a right of survivorship with (My name). In this context, that property may have been gifted earlier in the chain of title is irrelevant.

later...
(Mom)can execute a Directive to Pay the entire amount to (Me), if she desires. That would be the same, essentially, as the "waiver" you suggested

20 Pa.C.S. Section 2104(7)

(7) Tenancy in estate.--When real or personal estate or shares therein shall pass to two or more persons, they shall take it as tenants in common, except that if it shall pass to a husband and wife they shall take it as tenants by the entireties.

Sr. Counsel in-Charge, R/W Trans. & Litigation
Governor's Office of General Counsel
Department of Transportation
Office of Chief Counsel
Real Property Division

It is my opinion (which holds no weight in this argument) that the estate passed to a husband and did not pass to a "husband and wife", so 2104(7) does not apply. Unfortunately, you've got a lawyer on the other side who believes otherwise. You can go along with what he says, or you can ask a judge to decide. (I'm not sure what action would be filed to make that happen). It seems to me that the Real Property Division wants half the estate to be available to Medicaid.

 

[mike spence]

If I went to some lawyer, that didn't know all of the background here, and asked that the deed be updated to only have my name on it would they do it?

If so, the place would be in my name without my mom signing anything. If Medicaid is clever enough they might find these issues discussed, maybe not though.

In our case most (just about all really) of the compensation will be in the form of a replacement house. They buy the house themselves. I just want to keep my mom's name off the deed of this next house. Can the state force my mom's name to be on that deed? ...even if she didn't want it to be?

 

[justalayman]

The problem is; there really is no updating of a deed. Current Title of property is discovered by researching the chain of title and determining who the owner is. Since both the other joint tenants you co-owned the property with are deceased, unless either of those tenants transferred some or all of their interest to another party, the result of the title search will be you own the property.

I suppose you could execute a deed transferring title from yourself to yourself but it doesn’t make a lot of sense to do that in my mind. It changes nothing.

If the state were to do a title search, they would find your father’s ownership. They will find that whether you execute a deed to yourself or not.

The fact is; it is in your name only now. If your mother did hold some interest, you executing a deed from yourself to yourself wouldn’t remove that Interest. She would still hold her interest because she had not executed a deed transferring it to some grantee.

If anything she could execute a quit claim deed granting any interest she may hold to you. The problem; if the state believes she actually holds some interest in the property they would see that as giving it away



If you are seriously concerned about this I believe you need to file a court action seeking a declaratory judgment stating you are the sole owner of the property. It would be similar to a quiet title action but with a quiet title action you are asking the court to nulllify any claims against the property. With a declaratory judgment you are simply asking the court to research the records and make a declaration of whether you are the sole owner or not based on things as they are.

 

[mike spence]

I would rather be gifted half of the current house than half of the next since it will be quite a bit more valuable....if that's my only good option. There will also be remaining land on the current property that I have plan for using, and want in my name only.

As for the courts, I'm tapped out. We are reimbursed some legal fees, but we've exhausted them already going in circles....and there's plenty more to do. Our lawyer is a family friend who said not to worry about money, but there's only so much I ask of him at this point.

 

[LdiJ]

All of this discussion about Medicaid has been done without knowing how old mom is and what her health is like. Many people never need nursing home care and there is only a 5 year lookback period. If mom is a healthy 70 year old its unlikely that she will need nursing home care before the 5 year lookback expires. If she is a healthy 80 year old with no memory issues she still may never need nursing home care.

 

[mike spence]

This is true, and I can't predict anything of course. She has arthritis is both knees and a foot, maybe both. She doesn't walk well as it is. She's 73 now, and I could imagine a time when she'll be in a wheelchair.

 

[LdiJ]

This is true, and I can't predict anything of course. She has arthritis is both knees and a foot, maybe both. She doesn't walk well as it is. She's 73 now, and I could imagine a time when she'll be in a wheelchair.

That doesn't necessarily mean nursing home care. It could just mean modifying her home to be wheelchair accessible.

 

[justalayman]

I would rather be gifted half of the current house than half of the next since it will be quite a bit more valuable....if that's my only good option. There will also be remaining land on the current property that I have plan for using, and want in my name only.

As for the courts, I'm tapped out. We are reimbursed some legal fees, but we've exhausted them already going in circles....and there's plenty more to do. Our lawyer is a family friend who said not to worry about money, but there's only so much I ask of him at this point.

She can’t gift you what she doesn’t own

It sounds like a quit claim deed is likely your best action. It doesn’t mean she had any interest. It just means she is granting any interest she has


Ask your lawyer friend about the idea.