QUESTION

What is the best way for my parents to transfer the title of their home to me (their daughter)? They are having difficulty making mortgage payments.

Asked on Jun 26th, 2012 on Real Estate - Minnesota
More details to this question:
I live in another state, can afford to take over the payments for them, which would enable them to stay in the house as long as they are able. Our understanding is that I would obtain ownership of the house, which will remove it from their estate, but they would remain in the home. We are looking for the cleanest, simplest and quickest procedure for the transfer. Quitclaim the deed? Warrenty Deed? (they are original & only owners of the property) Are there disadvantages/advantages to doing this aside from the obvious immediate financial relief for my parents and the eventual real estate asset for me?
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1 ANSWER

Real Estate Law Attorney serving Anniston, AL at Isom Stanko & Senter, LLC
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It sounds simple enough to have them just convey their interests in the property to you.  But there is at least one roadblock to that.  Without even looking at your parents' mortgage, I think it is safe to say there is a "due on sale" clause.  That is simply a clause that says if they convey any interest at all in their property without prior written consent of the lender, it is a default and thereby exposes all parties to a possible foreclosure.  So, unless the mortgage holder is a local institution that you can speak to and perhaps get written permission, it is risky to have them deed the property to you.  If you have the financial strength to simply pay the mortgage off if there is a necessity to do so, you might consider going ahead with the transaction and -- if the lender learns of the transaction and objects -- you can dispose of the issue by paying the mortgage off.  (If your parents have good title, I recommend they make any conveyance by a standard warranty deed, but have the deed recite any encumbrances such a mortgage, easements, etc.) Is there an alternative?  The best alternative is to ask them to prepare a will and, in the will, leave the property to you.  Your payments on the mortgage can be deemed a loan to them.  Should anything happen to block the transition, unless their estate becomes insolvent, you could file a claim against the estate and recover your loan.   Another consideration is the possibility that your parents will one day have to enter a nursing home.  If that is the case, unless they have disposed of their home more than 5 years prior to entering the nursing home, they will have to "spend down" their assets to the point that they have very little in order to qualify for Medicaid assistance.  In other words, they will have to use up their own resources for their care before they will qualify for Medicaid.  (These comments assume the basic provisions of Medicaid will not change materially any time in the near future.)  
Answered on Jun 26th, 2012 at 8:33 PM

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