My dad has serious dementia, and end stage kidney disease. Due to several complications he is going to Hospice and will no longer be with us soon. Doctors say I have 2-3 weeks before he goes. I have full POA for him. Should I use my POA to put his house in my name before he passes to help avoid probate?
1. How is the deed titled now? If it's your father and you as joint tenants w/ rights of survivorship, the house will pass to you automatically on his death. If it's only in your father's name, it won't.
2. You don't mention a trust so I'm assuming that title hasn't been transferred to any trust.
3. Are their other heirs who would be entitled by bequests in a will to a share of proceeds from the house? If so, your transferring title to yourself might look like a power grab and start a sibling feud.
4. You refer to a "full POA". I'm assuming you mean a Durable POA, as that's the only kind that would allow you to execute a deed to transfer title.
5. Is your mother alive? Your profile doesn't provide this information. And if so, is her name on the Deed?
6. Has your father executed a Will, and if so, to whom is the house bequeathed?
So, you see, it's not quite a simple yes or not answer.
In order to bypass probate, ALL ASSETS - not just the house - need to be transferred to entities that pass outside of probate. If he has a life insurance policy that he (his estate) is beneficiary of, that would need to be changed and those will take weeks to process. If he has savings or other assets, those will need to also change ownership structure to bypass probate. You may find the banks are totally reticent in doing any changes on the account even with a POA.
Why the fear of probate? If dad has a valid will, it should be pretty step by step to do. The states have a number of ways to do probate: there's full traditional probate, small estates probate, small estates affadavit, a muniment of title. The latter two are pretty straightforward & simple & can IMHO can be done pro se, if you have your wits about you & your comfortable in a courthouse and they die with no debt. The dying with no debt is a key in all this because if you transfer the house and dad dies with debt that could have been paid from the sale of his house as an asset of the estate, well....you could have all sorts of issues....
If dad has less than a month, what is a better use of your time?
You don't mention other family, but if in dads will there are others who are to be beneficiary of his estate and you as DPOA do things now to adversely affect their inheritance, they can go after you personally for breach of fiduciary duty as his DPOA or whatever they call this in your state.
If dad has had Medicaid, there will be a claim or lien on the property that will need to be resolved to ever sell the house.
How is hospice being paid? Medicare has hospice as a benefit. But the room & board costs are usually not covered by medicare. Its the medical related costs to the specific disease that is covered by Medicare. My mom was on hospice for 18 mos in a NH. Hospice got paid about $ 4,200 a mo from Medicare but Medicaid was paying her daily room & board costs @ the NH ($ 7k) and for Rx's & supplies not related to her terminal condition.
Really try to step back on all this to determine what's best for Dad.
If you receive the house via a Will then the tax basis would be the value the house was at the time your received it. If you receive the house before your Dad passes [so sorry to read that your Dad is very ill] then the value of the house could be the day your Dad bought it, thus jumping up the capital gains big time. Maybe the laws on that could have changed, check with a CPA before making any changes.
As to the tax issues, another aspect to explore is the tax step-up issue on date of death as FF described it. It's been awhile since I've deal with that and won't pretend to be knowledgeable, but I do remember from discussions with our estate planner that some assets are "stepped up" to the market value on date of death, thus there are no capital gain issues. This was the situation when my mother died; her stock passed to me at market value on the date or her death.
If your mother has already died, the house may already have stepped up in value; this is one aspect I don't remember, i.e., whether the value is stepped up again when the latter spouse dies.
I'll bet you thought you were asking a simple question, and now it's become very complicated, hasn't it? Unfortunately, dying is so difficult enough emotionally without all the legal and tax implications.
I two sisters are involved but we have an open conversation about assets and they trust me. Up until about 48 hours ago it was all about trying to find a way to pay for long term care. Now it's making him as happy and comfortable.
Igloo572, thank you for giving me the benefit of the doubt. My first concern is my dad, my next is my responsibility for the estate.
We do not have a trust set up but we do have a full will.
This is a little bit of a rambling reply. Thank you all