Legal Question in Credit and Debt Law in North Carolina

I don't know how the deed reads - do you and your father own the land as joint tenants with right of survivorship or as tenants in common? If you don't know, go and look at the deed - many counties have online deeds if this is in North Carolina. Basically, you are tenants in common unless the deed specifically lists under grantees that you and your father are joint tenants with right of survivorship.

If your father would die and you own the house as joint tenants with right of survivorship, the house automatically passes to you as the sole owner as of the minute of death. Your father's creditors cannot touch the house because your father or his estate no longer owns it.

If you own as tenants in common, then one half of the land will pass to the beneficiaries as per your father's will or, if there is no will, to your father's heirs under the intestacy law. If you are an only child and there is no spouse, then you get the land. But, the heirs cannot keep assets and not pay bills. In that case, the land would have to be sold and the money used to pay the bills and you would get 1/2 of the sale proceeds plus your share of whatever is left over. If you don't want the land to be sold, then you have to figure out another way to get money into the estate.

You might think the simple solution is to do a new deed conveying the land to yourself and your father as joint tenants. This might have other ramifications - if the creditors find out, it might be deemed a fraudulent conveyance because your father is giving away his assets to prevent his creditors from getting it. If your father is on Medicaid or if he is not on Medicaid now but might need it in 5 years, then his giving away his share of the land may also preclude him from being eligible for Medicaid if he gave away his property in the 5 year period before he applied for Medicaid.

Rather than worry about this issue, may I suggest another alternative? What about trying to resolve the debt? I know nothing about your father's situation, his income, his assets, when the debts were last paid. However, if I had this information, I could better advise your father as to what to do and whether he needs to worry or not.

Please have him contact me at [email protected] if he is interested. As you do not have power of attorney, I cannot speak with you regarding your father's circumstances, but if a power of attorney is necessary and if your father is mentally competent, I can draft one for a small fee. I can also consult with your father about his situation. I give free email consults and charge $50 for a 30 minute phone consult so he does not have to travel to my office (assuming he is in North Carolina, Georgia or Pennsylvania, ina all of which I am admitted to practice). I can also help resolve debts, again for a reasonable fee.

Creditors can get judgments against your father which would be a lien on the house. You probably would not lose the house but it depends upon several factors. I suggest your father have a bankruptcy consultation as soon as possible.