Dear Quentin,
My dad is 95 and still living alone in his shabby-but-livable old split-level home in my town in New York state. We three sisters live in town, and do his meals and keep an eye on him.
Dad plans to die intestate, saying, “Our Lord died without a will, so I am going to follow Jesus’s example.” Twinkle in his eye, enjoying being obstinate. And the doctor says he is officially non compos mentis due to an inoperable meningioma, which is affecting his functioning.
There are five siblings: our oldest brother, who lives in Minnesota; three girls, of which I am oldest; and then my younger brother, who is unemployed and lives in a hovel in a nearby town. Ages range from late 50s to 60s.
I am concerned about once Dad passes. None of the three youngest siblings own a home, and will likely move into the residence with impunity. The intestation problem may delay the probate process completion for several years. The house is in need of several repairs and is not in a condition to sell.
“‘The house is in need of several repairs and is not in condition to sell.’”
Sister No. 2 put herself in charge of all Dad’s accounts, and her name is on all of them because she took Dad to the bank two years ago and made it so. There is approximately $ 300,000 in his checking account, and she now hides the checkbook and statements and has password protection on his online account. She is very territorial about him and the house, and has even thrown out meals I and the other sister made him, substituting her own cooking.
My youngest sister is poorly employed and lives at subsistence level. She is a hoarder and lives in a shabby rented cottage, full of old stuff she dragged off the curb. She admits her problem and says she is “sorting” stuff to clear it out, but I believe the correct term is “churning,” which is moving stuff around and never getting rid of anything.
I once let her rent my house for a year on agreement that she not drag in old furniture, etc., at the height of the local bedbug infestation. I returned to find the house, after just five months, with one room filled with stuff almost to the ceiling. We discussed this and she angrily stated she would leave at the beginning of the next month, and did. We do, however, get along well now.
“‘I would gladly buy Dad’s house and give him life-estate protection.’ ”
The younger brother is fairly friendly and tidy, but when he is drinking he becomes very mean and threatening. He recently finished a three-year probation for threatening his neighbor at his front door with a gun, for which he was arrested and jailed briefly. He has not stopped drinking and lives on a $ 450-a-month union pension.
With all our family history, I see big problems on the horizon. Not one of us will have any say in keeping any of the others out. I would gladly buy Dad’s house, sell my three-bedroom house, and give him life-estate protection. However, I think his mental status might make this arrangement untenable for him and make the sale null and void, even if he agrees.
What suggestions might you have for avoiding these problems upon Dad’s death, and maybe even heading them off at the pass?
Storm Clouds on the Horizon
Dear Storm Clouds,
All religious figures leave behind a message of some kind, and most faith traditions have a text or guidebook on how you should live your life and distribute your good fortune. There are many ways to follow your faith, and leaving a will ensures a fair and equitable distribution of assets.
Dying intestate — without a will — can be a longer and more arduous process, and it may be too late to avoid that by persuading your father to put his affairs in order now. If he lacks testamentary capacity due to his cognitive decline, your father is now beyond writing a will.
What happens to your father’s home and accounts should take precedence over the ongoing and, it seems, frustrating financial states of your respective siblings. I understand that you have strong feelings about their ability to function independently, but ensuring that your father’s estate remains intact and there’s enough money to take care of him should he require long-term care is paramount. You can talk to your father about giving you power of attorney and/or file a petition in court if you believe his finances are being mishandled.
A Durable Power of Attorney requires a higher standard of capacity than a will. Your father requires “testamentary capacity” to write a will. “This is the lowest standard of capacity, and essentially if the person has a rough idea of his assets, knows that he is signing a will and knows who would be the usual beneficiaries of his estate, the ‘testator’ is generally seen to have capacity to execute a will,” says Patricia Tobin, a certified elder law attorney based in San Rafael, Calif., and fellow of the National Academy of Elder Law Attorneys.
“Your sister has a duty to act transparently and in his best interest.”
“A Durable Power of Attorney requires a higher standard of capacity, something equivalent to the capacity to execute a contract,” she adds. “Further, in most states, a Durable Power of Attorney that does or might affect real estate, should be notarized otherwise it might be rejected by the county recorder’s office. While a notary is not going to make an on the spot capacity assessment, if the signer clearly is not understanding what is happening, notaries should not notarize the signature.”
Whether or not he is of sound mind, your sister has a duty to act in his best interest and do so with full transparency. If your father — unwittingly or not — made her co-owner on his checking account as opposed to a co-signer, she would automatically become full owner of that account when your father passes. To petition for guardianship, you would need to prove that your father no longer has the ability to take care of himself. With all else being equal, a family meeting is usually recommended. In the meantime, consult an attorney on your rights and options.
When your father passes, Tobin says, his estate will either be settled by probate administration, by following ownership or “title” documents — including the title of his house — and/or by an affidavit process under the laws of your state, which provide for a transfer of property after death.
“If there was undue influence, or pressure or threats used to insist that the father give someone his property when he dies, that could be seen as elder abuse,” she says. “In rare situations, after a lot of time and expense, if there was fraud or undue influence when his health was failing and he ultimately died, those ownership rights could be invalidated. A court-supervised probate administration, while time-consuming, inconvenient and expensive, would be the starting place to consider allegations of fraud or undue influence.”
“ I advise against engaging in a property transaction with your father. ”
Probate would involve a public accounting of all the assets (and debts) in his estate by a court-appointed administrator.
“That person can be a family member or a stranger or a creditor,” Tobin says. “The administrator identifies and collects and, if necessary, safeguards the property; makes an inventory of all the property; often assigns a value to the property; gives notice to heirs or family or others with an interest in the property; and then presents this to the court, who will apply the New York state law to determine which relatives will be entitled to the property.”
When the time comes, think carefully about whether you wish to accept your share of your father’s home. If you do end up as a co-owner of your father’s property, you can always file a partition lawsuit to force the sale of the property, depending on its value and your wish to be involved in a real-estate transaction with your siblings. I strongly advise against selling your own home and/or engaging in an ill-advised real-estate transaction with your father. That seems rife for misunderstanding and potential legal conflict with your siblings.
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