How do I change ownership of a condominium unit?

Question

My father passed, owning a condo, which is being managed and rented out by a property manager. She deposits rent in my mother and my joint checking account. Dad did not put Mom's name on title but has condo in some type of trust, with my estranged brother's name. Brother hates Mom and me and wants "nothing to do with her" and me. Mom is blind and has dementia and is in a memory care facility in another state. Dad changed trust to make me trustee, executor, and POA, instead of brother. Mom told lawyer and financial advisor she did not want to leave her son one penny. How do I change deed to her name or both her names and mine? She is almost 92 and not doing well. My daughter fears that my brother (who hates his Mom) will get the condo, when I am the one making sure it's rented and assessment is paid and furniture replaced, etc. Thank you.

Michelle Fitzgerald · Answer

If there is already a Trust in place and you are the current acting Trustee, we can prepare a Trustee's deed for the change - provided it is allowed under the terms of the Trust. We would need to review the Trust language to make sure such a change is allowed, or explain to you how the plan is to be carried out upon your Mother's passing, if it is not possible to make the change now. To do those two items, it is not a lot of time, but will be worth the peace of mind it will bring you. We can review documents via email and discuss over the phone if you are not located near our offices. Otherwise, have it reviewed by an estate or probate attorney in your local area.

Roger Durkin · Answer

First, you should consult directly with a lawyer. You raise some conflicting issues, or maybe I am confused as to the facts. The trust with your estranged brother name raises the question is he surviving trustee, a beneficiary. And how and when did Dad change the trust to make you the trustee and is the trust recorded. Did your father make you the Executor (personal representative) in his will or are you assuming the title? The POA ceased when he died. Does your mother whom you write "told lawyer and financial adviser she did not want" have a lawyer? If so, why are you reaching out to us? Your mother's lawyer would be the lawyer to address your issues.

C. Thomas · Answer

I am not exactly sure of the facts.   By that, I mean I am not sure if you are saying that the condo is titled in the name of the trust or your brother (or perhaps both).   I feel like you are saying the condo is in the name of your brother somehow, or perhaps your brother is the beneficiary of the trust.  If the trust is involved in ownership of the condo, then you need an attorney to review the trust to see if there are steps that can be taken to change ownership of the deed.  You need to make sure and contact someone that has experience with trusts and real estate.  As an aside, depending on the language of the trust and related estate documents, you need to be careful about adding your name as an owner of the condo.   It could be deemed a breach of fiduciary duty that can cause all sorts of problems for you down the road.   It all depends on the language of the various estate planning  documents.  Final thought . . . the preparation of the deed is the simple part . . . determining whether to have the deed prepared is the hard part.   You really need to hire someone to advise you as trustee.

Edwin K. Niles · Answer

Sorry, but the answer will require a review of all documents.  Please see a wills, trusts and estates lawyer.

Ronald Nims · Answer

Every trust is different and you need to get a copy of the trust, if you're the trustee then you have the authority and duty to run the condo but only by reading the trust will you be able to determine who is entitled to inherit it. Since you don't have the trust document, probably the easiest way to get a copy is from your father's attorney. If you don't know who your father's attorney was, I'd advise you to look at the documents which were recorded when your father put the condo into the trust. ?Chances are that the attorney who drafted the deed and/or the memorandum of trust will be the one who has all your father's records.

Christine James · Answer

No one can answer that question without seeing the title to the property and the trust documents. Speak with a probate/estate planning attorney as soon as possible to see what if anything can be done.

James Frederick · Answer

The answer to your questions depends on the trust. You need to get a copy of the trust and any amendments to determine what they say. Your mom's intent is probably irrelevant, at this point. It is your father's intent as expressed in the trust, that matters. If the title is held by the trust, then the trust terms apply.

Randall Romei · Answer

The owner of the condominium appears to be the Trust established by your father.  The terms of the trust will control your authority as trustee.  The trust terms determine who is to receive the current benefit from the trust assets.  Your mother, as the recipient of the rent from the condo is the current income beneficiary of that trust asset in practice, even if that is not in accord with the terms of the trust.  The typical trust would make the spouse the income beneficiary during the lifetime of the trust.  The typical trust would determine how trust assets are to be distributed after the spouse dies.  The terms of your father's trust will determine if you, as trustee, can transfer the trust asset to your mother.  If the terms of the trust grant your mother a power of appointment over trust assets she may be able to appoint the trust assets to someone other than your brother in her own will.  You should have the terms of the trust examined by a lawyer to determine the authority you have as trustee and power granted either you or your mother to deal with the assets of the trust now and at the time of your mother's death.

Thomas Edward Gates · Answer

You will need to probate your father's estate. Further, you must be appointed the personal representative. If your brother is identified as a beneficiary you must follow the instructions in the will as to what he is to receive. As personal representative you can transfer the condo via a personal representative deed.

Brian Haggerty · Answer

If you are the trustee, you can only do what the trust document says or what is allowed by law. If the trust says that the property is to remain in trust until your mother's death, then that's what you must do. In order to properly answer your question, a lawyer needs to review the trust instrument. Mom's estate plan is a separate matter.

Milton Colegrove · Answer

If title to the real property is in the name of a trust, you should have the trust agreement reviewed by legal counsel. Only then will you obtain an accurate answer to your question.

Christine Socrates · Answer

I am sorry about your father and about your mother's situation.  I would need to see the trust to properly answer your question.  If the condo is titled is in the trust then the trust provisions will determine what can happen.  I would be happy to help you but would need to see the deed to the condo and the trust or will of your father's.

Norman Green · Answer

You must comply with the applicable terms of the trust, will, etc.  Bring a copy of the trust and any other documents you know of to a lawyer.

John Brennan · Answer

See an attorney with the details. The previous paperwork and titling will be critical.  Given the circumstances, do it as quickly as possible.

Melissa Botting · Answer

The powers of the trustee are spelled out in the trust. You would need to review the trust document to see if you can do this, and, if so, how to go about it.

Erven Nelson · Answer

If the condo is owned by a trust, you must look at the trust documents to determine the identity of the beneficiaries.  If your brother is willing to give up any interest he has in the trust assets (including the condo), a lawyer can prepare paperwork to remove him as a beneficiary.

Victor Waid · Answer

Suggest you obtain the services of a probate/trust litigation lawyer to review the trust and determine the best way to accomplish the changes you request. However if the condo is in   the trust, then the terms of the trust will control. Probably a  conservatorship of your mom will be required to give the conservator the power to sign her name for any transfer documents.

Neal Michael Rimer · Answer

You indicate that your father died. You seem to believe that you are the successor trustee of the trust that owns the condo. I am guessing that there are other assets that are a part of the trust as well. My advice to you would be for you to retain an attorney to represent you in your trustee capacity. You are required to do certain tasks as the successor trustee. Most likely, you are required to give notice to all the beneficiaries of your administration of the estate within 60 days from the date of your father's death. You must also give the beneficiaries notice of their rights. A period of administration is customary and normal to deal with all the issues following death. An estate tax return, if required, must be filed within 9 months from the date of death. Even if there is no estate tax, there are elections that need to be made. Valuations need to be done on the assets in the trust as well as those outside the trust. There are tax advantages to this work since the tax basis (used to compute gains and losses on sales) are able to be stepped up in value to the date of death value without any income tax cost. New depreciation is therefore available on rental property. Depreciation is a non-cash expense for tax purposes. It reduces the amount of taxable income received from the rental activity. There are other advantages available in the period of administration and other obligations that are probably required of you as well. Along the way, the title to the condo will be dealt with and fixed. Do not try to do all this yourself. There are too many laws that you need to be familiar with both state and federal.  Mistakes are much more costly that legal fees to assist you in this matter. The expense of retaining and paying an attorney to represent you is a proper trust expense and the trust should pay for all those costs as well as appraisal fees and costs.

James Weiner · Answer

You need to hire an attorney and have that attorney review the trust and the amended trust as soon as possible. No attorney can give you a reasonable opinion how to do this without reviewing the trust.

Jayne Sebby · Answer

If the condo is in a trust created by your late father, you may not be able to do much until the trust expires. Since your mother's name is not on the deed, she may not be able to do anything either, even if she were competent. The trust owns the property and can decide what to do with it. Contact a local attorney experienced in trusts and see what he/she suggests.

Ben Liu · Answer

Go see the lawyer who prepared the trust amendments, he or she should be able to help. Or have another attorney review all the trust documents. If the documents are in order, you as the new trustee, should be able to execute a deed to the new owner of the condo per the documents.

C. Hamrick · Answer

If the condo is in West Virginia, you need to see a West Virginia lawyer to review the trust, condo rules and regulations, and original condo deed. This is too complicated to give you an answer.

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