My father is dying and doesn’t want to have his properties probated, yet he never set up a trust or quit claimed the properties to us children. I have durable power of attorney. Can I quit claim the house and land to me and my siblings, legally? This is my father’s wish, so we’re not doing anything he wouldn’t want. Or could I set up a family trust as his POA?
Thanks for the help!
Tags: Attorney, Claim, Does, Durable, Dying, Father's, Give, Power, Quit, Right
You may do anything that your father would have done. If challenged in court as a conflict of interest, you have to provide the court a reasonable explanation of your actions.
If there are any family members or creditors who might contest your action, your action could leave the estate in litigation. This is the primary area of risk.
Quit claim also does not clear title if it was previously clouded. An action like having the home sold for taxes and bought back by family does clear title, but it can take a lot of time.
You need to consult an attorney on the details, but as a real estate agent and as a tax pro I have to say that it is much better to inherit real property than to have it given to you before the original owner dies.
It has to do with basis and with taxes. A trust may well be a good solution but you and your family need legal counsel.
You had better ask a lawyer on this one. A financial institution or title company will probably not accept a power of attorney for land transfer. You may need a conservatorship. In other words, you have to go to a judge and have your father declared incompetent.