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Owning property

Discussion in 'Division of Marital Property' started by gerard2006, Dec 9, 2019.

  1. gerard2006

    gerard2006 Law Topic Starter Member

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    Jurisdiction:
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    Folks - I know me and my wife co-own property but what document lists the type of co-ownership? As I understand, there are 4 types

    (1) tenancy in common,
    (2) joint tenancy,
    (3) joint tenancy with rights of survivorship and
    (4) tenancy by the entirety.

    Secondly, do any of the above allow a single spouse to sell property to a 3rd party without the other spouse' authorization. I ask this because if one spouse is incapacitated, I want the ability to do this as medicaid long term care take into account your home equity limit

    Thanks
     
  2. army judge

    army judge Super Moderator

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    The deed that lists the names of the TWO owners will reveal to you how you hold title to the property.

    Get out the deed and you'll know instantly the answer you seek.

    What, you don't have a deed in your possession?

    Easy fix, pal.

    You can visit your county recorder (or whatever it is called in your state, buy a copy of the deed, and "voila", the answer is right before your very eyes.

    Heck, your lender might even be able to tell you HOW the property is deeded.

    Happy hunting, buddy.
     
  3. gerard2006

    gerard2006 Law Topic Starter Member

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    Can you help with my second question too

    do any of the above allow a single spouse to sell property to a 3rd party without the other spouse' authorization. I ask this because if one spouse is incapacitated, I want the ability to do this as medicaid long term care take into account your home equity limit
     
  4. Zigner

    Zigner Well-Known Member

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    Yes. Research each term and you will better understand.
     
  5. zddoodah

    zddoodah Well-Known Member

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    I'm not quite sure I understand the question, but the nature of your joint ownership should be identified on the deed.

    You could sell your interest (except, I believe, in the case of tenancy by the entirety), but you cannot sell your spouse's interest without her signing off.

    Discuss this with your wife and then visit an estate planning attorney.
     
  6. gerard2006

    gerard2006 Law Topic Starter Member

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    I was able to access my deed on this website ACRIS Search By Parcel Identifier

    It doesn't include any of terms stated above like tenancy in common, etc and simply states Return to: Name 1 & Name 2. How do I now determine the kind of owners we are?

    Thanks
     
  7. flyingron

    flyingron Well-Known Member

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    Understand that there's no single "deed" to property. Each deed conveys some ownership from one party (the grantor) to another the grantee. TITLE is the effective ownership that is determined by examining the entire chain of deeds on the property.

    With all of the versions of title that you describe, a party may deed away their interest to another person without the permission of the co-owner, with the exception of tenancy by the entirety.

    However, that ability is distinct from whether the property is deemed marital property or not. Further medicaid goes by its own rules. However, spouses usually do not have to be concerned with medicaid recovery being used against them while they are still alive. It is ill-advised to do random willy-nilly deeding of the property. It's fraught with peril and may disqualify you for needed services as well. You should be talking to an attorney about your concerns.
     
  8. zddoodah

    zddoodah Well-Known Member

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    Generally speaking, when no form of joint ownership is specified, the joint owners are tenants in common. However, if you and your spouse were married when you acquired the property, something else might apply. You're going to need to consult with an attorney about this. One alternative might be for you and your wife to convey the property to yourselves, "as [whatever form of joint ownership you want]."

    Also,

    I've never heard of joint tenancy without the right of survivorship, so I'm not sure you're really describing two different things here.
     
  9. army judge

    army judge Super Moderator

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    Somewhere, once upon a time, someone should have given YOU and YOUR BELOVED, a copy of the deed to the home you own (or are buying over time).

    Do you recall such a transaction?

    If you can't, not to worry.

    You can see if your county recorder of deeds allows citizens to view the deed online.

    Alas, if that isn't allowed, visit their office and ask to procure a copy of said deed.

    Your mortgage holder MIGHT have a copy of the deed.

    So MIGHT your homeowner's insurance issuer.

    You can see if they will fax, email, or snail mail you a copy.

    In some cases, one or the other will simply tell you (which may or may not help you), HOW your deed is worded.

    As far as insulating yourself from the actions of any federal government agency, anything you do to THWART one of those greedy rascals might create more trouble than you imagine.

    Mate, they can be very persnickety critters, insofar as certain actions are involved.

    As others have suggested, speak to a local estate planning attorney, or do nothing to anger any of the aforementioned, greedy rascals.
     
  10. gerard2006

    gerard2006 Law Topic Starter Member

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    So that everybody understands my end goal here, I drafted a durable power of attorney so that my spouse (and vice versa) can sell the other's share in the property to qualify for long term care with medicaid which needs assets to be under a certain level. However, the POA is only valid if you file with the county clerk and I'm not a big fan of making all this information public. That's when I started to look into this ownership to see if things can be done without a POA. I'm also wondering if a POA can be filed just with the title company to keep things private or if a spouse can sell their interest to other spouse ahead of time in a document but not activated if there's no need to.

    Thanks
     
  11. flyingron

    flyingron Well-Known Member

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    In New York, joint tenancy has survivorship rights inherent in it. That's not true in all states; some require you to explicitly state that there are such rights.

    As for your problem, again, YOU should not be drafting anything. What you are attempting to do is poke at a very complex area of the law with a stick and hoping you get what you think you want without messing something up irreparably.

    With a well crafted power of attorney, you likely can dispose of the house no matter how the tenancy is held. However, it's not clear that you need to do. Medicaid excludes the house that the recipient or the recipient's spouse is living in. You might wish to read this: Medicaid Treatment of the Home: Determining Eligibility and Repayment for Long-Term Care

    And no, you can't sell anybody else's share without their consent (either explicit or via POA) no matter how the tenancy is held.
     
  12. gerard2006

    gerard2006 Law Topic Starter Member

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    I did read about the meidicaid treatment of primary property but it has $$ limits for your equity interest in the house
     
  13. army judge

    army judge Super Moderator

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    I suggest you do nothing with the document you created.

    If the event you fear should come to pass, the greedy, government agencies won't move to STEAL your home.

    I won't bore you (and others) with a long explanation as to WHY they won't, just accept my representation that you're fretting over something that will never come to pass.

    I know of what I speak because I have been where you fear to venture, TWICE.

    Suffice it to say, my ONLY concern was the recovery of our son, followed by my death of my first wife.

    I assure you, the only thing to fear is an unknown, devastating, medical malady or event.

    If you or your spouse should ever become afflicted with a debilitating, deadly medical issue, your efforts might be better spent investigating the efficacy of a long term medical insurance policy, or other insurance policies insuring against all catastrophic medical events.
     
  14. gerard2006

    gerard2006 Law Topic Starter Member

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    I don't fear anybody stealing my home. I'm just trying to come up with the best possible outcome vs filing a durable POA purely for medicaid eligibility reasons. Again, nobody expects bad things to happen but things like last wills are created for the worst case scenarios
     
  15. army judge

    army judge Super Moderator

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    I wish you well.

    I pray you'll be able to acquire excellent medical coverage and protect your assets.

    Don't rely on ANY government to do for you or yours as well as YOU'D do for yourself or yours.

    Don't rely on medicare or medicaid to ensure your loved one is cared for properly.

    There are insurance policies available to assist you if a catastrophic medical event befalls you or your spouse.
     
  16. gerard2006

    gerard2006 Law Topic Starter Member

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    I've thought about that because most good facilities don't seem to accept medicaid. My other option is to still create a durable POA to give my spouse entire control of my finances if I'm incapacitated and since it doesn't have a property clause, it doesn't have to be filed
     
  17. zddoodah

    zddoodah Well-Known Member

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    Why do you think doing that will accomplish this result? You'll simply be converting an asset from one form (equity) to another (cash). At least with the equity, some of it will be exempt.
     
  18. gerard2006

    gerard2006 Law Topic Starter Member

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    Well I would at
    well I would be selling my spouse share to someone like a child
     
  19. gerard2006

    gerard2006 Law Topic Starter Member

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    I found out from my closing attorney. We took the ownership as tenants by the entirety
     

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