Found an issue on this page? Let us know and we will look into it as soon as possible.
Just prior to my mothers death she changed the deed to her house to include me as a Joint Tenant with Right of Survivorship.
Anonymous7 views3 answers
My mother had recently moved to Indiana from out of State and purchased a home in Indiana. Shortly after getting here she became ill and spent a few days in the hospital and then was moved to a rehab./ nursing facility for PHYSICAL REHABILITATION but due to years of smoking she passed away. She did not have any sort of dementia or anything but soon passed away. She did not have a Will but I had a POA. She had told me when she died she wanted us, (my wife and I), to have her house so I prepared a Deed at her request as a JTWROS and a Notary that worked at the facility notarized the Deed. I have 2 siblings that are not happy about this and have now put a LIS PENDENS on the property. What can I do to have this removed ? My mother died INTESTATE and had very little other property in Indiana.
Any time an attorney-in-fact uses a POA to do anything that provides a benefit to the attorney-in-fact, it's subject possible scrutiny. That doesn't necessarily mean it's void, but, as I'm sure you can understand, on its face it presents the possibility that the attorney-in-fact took advantage of the principal.
From what I can tell, the threshold question will be whether the deed was prepared before or after your mother's death. If after, the deed is no good because a power of attorney does not survive the death of the principal.
Assuming the deed was prepared before her death, the language of the POA itself, read in tandem with the POA statute, may have a lot to do with the results. For example, a POA will sometimes expressly authorize the attorney-in-fact to make a gift to himself, but sometimes within limitations. On the other hand, they sometimes expressly prohibit self-dealing or making gifts to the AIF.
If the language of the POA itself doesn't shed enough light on the question, there 's always the duty of the AIF to act in the best interest of the principal, and that does not always mean following the instructions of the principal (such as instructions to prepare a deed in favor of the attorney-in-fact), because sometimes the principal is not capable of deciding what is in his or her best interest. However, you stated your mother did not have dementia, so her instructions may well carry a lot of weight, but once you're down to determining whether the AIF acted in the best interest of the principal, it's difficult to predict where a court will come out on the question.
I agree with Attorney Smith. In addition, should litigation ensue, any action you take which is self-serving is presumptively void. It would be up to you to rebut the presumption. It is in your favor that your mother did not suffer from dementia as it will be important to establish that she knew what she was doing when she signed the deed.
As far as the Lis Pendens, if your only concern is to have the cloud removed, you can sue your siblings for slander of title and/or to quiet title. It should go without saying that there are relational concerns that should be considered before going down this type of path.
I completely agree with the previous answers. In addition to those comments, you will need to record a Survivorship Affidavit in order to remove your mother's name from the property record and to have it in your name alone. Assuming that your wife was not also named on the Deed your mother signed, after the Survivorship Affidavit is recorded, you can then execute a Quitclaim Deed transferring the property from just your name, to the name of both you and your spouse as husband and wife (to create rights of survivorship to the property between the two of you).
