Legal Question in Real Estate Law in California

California real estate law question.....The situation..My wife and I own residential rural property along with my mother-in-law. It is held in joint tenancy. There are two separate homes on the property. She lives in one and we in the other. Mom's health is slipping and she may need to go to a retirement home soon. She has very little in the way of other assets and did not prepare with a long term care insurance policy. Some cash, stocks, and a car. My question is would it be advisable to have her quitclaim her portion of the property to us prior to her moving to a retirement home or will that trigger a property tax reassessment or some other disadvantageous situation? Will the state go after her equity in the property if she can't pay for long term care? It is my understanding that when she passes away, her portion of the joint tenancy automatically goes to my wife and me without probate.


Asked on 3/27/11, 10:16 am

2 Answers from Attorneys

You are correct that the property goes to you without probate when she dies. Quitclaiming the property to you, however, especially if it has appreciated significantly, is almost certain to be a bad idea from a tax standpoint. In addition, depending on timing and the rest of her financial situation, it might be a fraudulent conveyance, which would be a real mess. You really need to sit down with an estate planning attorney with all of her financial information in front of you, and come up with a plan for minimizing the drain on her assets, and maximizing public benefits, for her final years.

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Answered on 3/27/11, 2:26 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Transferring real property to a relative for inadequate or no consideration to avoid recapture of MediCal assistance (or the like) is probably the most prevalent kind of fraudulent transfer known to the legal profession, and you can be 100% certain MediCal, etc. auditors are checking property records to look for them. So, a transfer would be contraindicated.

Also, since this property is currently held in joint tenancy, the analysis is a little different than if it were her separate property or ownership was shared as tenant in common. A lien that is secured only by the separate interest of one joint tenant expires and is extinguished on the death of the debtor joint tenant, and the surviving joint tenant holds the title free of the lien. So there is nothing to be gained from doing a transfer even if the auditors didn't pick it up.

The remaining question is whether the daughter is liable for the health care costs of the mother, based upon relationship. Family Code section 4400 says "Except as otherwise provided by law, an adult child shall, to the extent of his or her ability, support a parent who is in need and unable to maintain himself or herself by work." The main exceptions are that a child need not support a parent who abandoned the child. It also appears that an adult child (or other relative) is not required to contribute to the cost of certain other public assistance programs. See, for example, Welfare & Institutions Code section 12350, which seems to exempt relatives from responsibility for Medi-Cal costs.

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Answered on 3/27/11, 5:51 pm


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