Legal Question in Wills and Trusts in New York
my brother just passed away in new york state and jointly owned a piece of property with his long time partner. He had no will and we have been told the his part of the property will be given to my mother. She is about to go into a nursing home (alzheimers) and we have been told the county (or medicare ) will take her portion of the property and force a sale etc. The family has no problem with his partner getting all of the property. Is there a way to sign this over to his partner without going through ownership with my mother?
1 Answer from Attorneys
First, you have to look at the language in the deed. If the deed states that brother and partner are joint owners, then there is nothing to do but file a new deed in partners name with death certificate. As joint owners, property would automatically pass to partner.
If deed has no language concerning joint ownership, you have more of a problem.
1. Brother's share is now owned by an estate. If there is no will the property would pass to mom intestate. Therefore, you would have to file an estate administration with the Surrogate's Court.
2. Once an administrator is appointed, the property (if there is no deed) passes to Mom. Normally Mom would simply deed property to partner. However, if Mom has no mental capacity, there must either be a valid Power of Attorney to effectuate the transfer.
3. If there is no Power of Attorney for Mom, you would have to apply to the Court to appoint her a guardian under an Article 81 application. Once a guardian is appointed, you would have to seek permission from the Court for the transfer of the property to partner. This is difficult since it goes against Mom's interest.
Mike.
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