QUESTION

Do my minor children benefit or suffer from a life estate?

Asked on Aug 18th, 2014 on Trusts and Estates - Georgia
More details to this question:
My 2 minor daughters and I are/were on the county recorded deed of a home free and clear of mortgages. After a law suit threat, my dad offered to be holder of a Life Estate for the home, described to me as a Trust to protect their asset. We've lived in the home ever since. After the quit claim deed, their names are still recorded in county records with his. If I signed away their asset what is their recourse, what laws protect them? I'd already been diagnosed with brain tumors and brain damage. Does their home become his when I die?
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1 ANSWER

Wills Attorney serving Alpharetta, GA
4 Awards
I hate to tell you this, but it sounds like you don't own your house any more. And you have a complete mess on your hands, which you cannot fix by simply signing over your daughters' interests in your house to yourself. Your minor children should NEVER, under any circumstances, have been put on the deed to your home. Having minor children own real estate is a disaster - you can't get a loan if you need to, you likely can't sell the house and use the proceeds to invest in another house, your daughters may not be able to get financial aid for college without problems, etc. But apparently that happened at some point, so now you have to figure out how to deal with that. It sounds like you transferred your interest in the house to your father in an attempt to protect it from a possible claim against you. If you had filed bankruptcy, the creditor with the claim (and any other creditors you had) would likely have been able to have that transfer undone as a "fraudulent transfer," because your intent was to defeat their ability to satisfy their claims against you. You also made a taxable gift to him when you signed over the property. If I understand your situation correctly, your father now holds a life estate in 1/3 of your house (the 1/3 that you owned under the deed which named both you and your 2 daughters as owners), and your daughters hold the remainder interest in that 1/3, as well as owning the other 2/3 outright. You don't own any interest at all, in other words. So if you die, nothing happens. If your father dies, your daughters own the house, assuming they both survive him. You cannot sign over the asset owned by your daughters without having been appointed as a conservator for them; you don't have the legal right to do that because it hurts their interest. So they should still own their interests. You only signed over your own interest. I would recommend that you find a good real estate attorney and have that attorney review the existing chain of title to see exactly what the situation actually is and who owns what. If your father holds a life estate in 1/3 of the property, with a remainder in your daughters, and your daughters own the other 2/3, as it sounds like may be the case, you may be able to take some steps to at least have your father transfer his interest back to you so you have a life estate in part of the house rather than him. You may also find out you have a different situation than it sounds like you may. But without actually seeing the underlying real estate records, no one will be able to tell what you have. And if you try to fix this yourself, you will likely make any problems you already have worse, so please don't try to self-help. You may also need to see an attorney who can deal with guardianships and conservatorships, as well as an estate planning attorney, to help get it all worked out decently. Best wishes to you. I hope you are able to get this resolved with a reasonably good result for you and your daughters.  
Answered on Aug 20th, 2014 at 7:39 AM

This answer is being provided as general information and not as legal advice. No attorney-client relationship is created by this answer.

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