Legal Question in Real Estate Law in California

Re: quick claim deed override a will

First of all, it is quitclaim deed. There is no such think as a "quick claim" deed.

A will or trust can only transfer title to property owned by the decedent at the time of death. If you mom owned the house the time of your grandfather's death, it would override the will or trust.

I have one word of caution. Sometimes quitclaim deeds are not acceptable to title companies. Grant deeds are better. Also, transactions transferring property to avoid reimbursing Medi-Cal for services can be undone if court, so proceed with caution.

Re: quick claim deed override a will

You must also look at the terms of any trust. Is it such that the property can not be removed from the trust [irrevocable], then a quitclaim deed likely would have no effect. Gather together all the documents that might be relevant, read through them to see what is actually said. There are numerous books on the problem [look at Nolo Press books in the public library. If you still ar not sure what the situation is, spend a few hundred dollars by going to a good trusts and estates attorney, and also find out if there is any tax liability, etc.

Re: quick claim deed override a will

A will has no legal effect while the maker is alive. It is considered an "ambulatory" document, meaning it is always subject to change. The maker of the will is free to change his or her will at any time (prior to death, of course) and one way to change your will is to dispose of property mentioned in the will.

When the maker of a will disposes of property that is specifically made a devise (real property gift) or bequest (personal property gift) before death, that act of pre-death disposition is called an "ademption" and the gift is referred to as having been "adeemed." A testamentary gift can also be adeemed by giving the property to the beneficiary before death.

An ademption by prior disposition of the property constituting the gift to a third party seems to be what's happened here. The practical consequence is just as though that gift had never been written into the will; it is a nullity (I think so, anyway -- a specialist in administration of estates might have different or further thoughts).

The will should be studied carefully to see if it has any other provision for a substitute gift to the intended beneficiary because of the ademption.

I agree with my colleagues that transferring property to avoid it being tapped by MediCal is fraudulent and if or when discovered, MediCal will probably go to court to have the quitclaim deed un-done and the property levied and sold to satisfy the MediCal obligations.

I also think all the circumstances surrounding the creation and use of the power of attorney may be worthy of investigation for possible breach of duty, undue influence, or other misconduct. Also, in some cases special rules apply to gifts made "in contemplation of death" or within three years of death.

Overall, this is a situation where it looks like the parties may have had bad advice or have acted without proper advice, and because of the possibility of one or more frauds, even if well-intentioned, someone should finally get in-person legal advice especially with regard to protecting the family home against an action by MediCal.

Re: quick claim deed override a will

It is a Quitclaim Deed you have in mind. If your mom did that it was very bad planning. As a consequence, any capital gain in the property based upon you grandpa's tax basis will have to be computed and substantial otherwise avoidable taxes paid. The lesson here is that spending a few hundred with an attorney before taking this action would have saved the family thousands in taxes.

A will only affects property owned by your grandpa at the time of his death, and only then, if the will is proved up in probate to be valid and effective. A trust has no effect on assets not owned in the name of the trust.

There is a possibility, if there was a trust and if the house was in the name of the trust before these things took place, and if your mother was the Trustee of the Trust, that you might be able to get a court order detemining that your mother's ownership of the property is impressed with the obligations of the Trustee under the trust agreement.

Re: quick claim deed override a will

The documents would need to be carefully reviewed with an eye towards determining his competency to understand the nature of the document and his intent. Assuming your dad was suffering from dementia at his old age, his competency is key.

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