Legal Question in Real Estate Law in North Carolina

You ask different questions. Your father does need a will and should consult with an estate planning attorney or elder care attorney if he hasn't already done so. You can pass along my contact information to him if he is interested - he can reach me at [email protected] if he is internet savvy, mentally competent and not in need of Medicaid planning. If Medicaid planning is an issue, then he needs to see an elder care lawyer about that, although it may be too late for planning depending on the circumstances..

If your father is still paying for the mortgage, how is the mortgage to be handled upon death? NC law (I assume the real property is in NC) provides that real property passes to the beneficiaries or heirs as subject to any existing mortgages. So if the beneficiaries/heirs want to keep the property they keep paying for it.

You do not indicate what other assets are in your father's estate and whether there will be any debts or claims when he passes. So neither I nor any other lawyer can tell you now whether you will be able to keep the home. The heirs/beneficiaries cannot just refuse to pay valid debts/claims of the estate and keep the estate assets in most instances. Assuming that there are sufficient resources in the probate estate to settle any debts, then yes, you can keep the home and unless the mortgage is paid off at the time of death or your father makes a will and directs that the mortgage be satisfied (like out of insurance proceeds or something) then you would keep paying for it too.

Will the estate have to go through probate? It depends. If your father has a will it must be filed. But if there are no probate assets or no assets justifying probate then the answer is no.

If the estate is small, then there is a simplified process for collecting assets and formal probate may not even be needed.

Regarding the house, there are ways to see that it passes outside of probate if that is a concern. Your father could see if you could be added to the deed such that you and he own the property as joint tenants with right of survivorship. That way, the land would pass to you immediately upon death and the land at least would not be in probate. You might also want to discuss adding you to the mortgage if that is an obligation you are willing to take on as the lender may have issues with a conveyance of the land to you without you being on the mortgage.

There are also other things to consider here - is your dad in a nursing home? Is he going to be needing to go into a facility anytime in the next 5 years? If so, how would he pay for care once Medicare stopped? Does he have resources to pay, long term care insurance or would he rely on Medicaid? Medicaid, by law, must be reimbursed when your father passes. However, making a gift to you of a portion of the home might preclude him from Medicaid eligibility. So if this is a concern, your father may not want to do it.

Depending on what else your father owns, maybe a revocable living trust is the way to go. With a trust, assets are conveyed to the trust. The trust instrument appoints a trustee who manages the property. Your father could manage as long as he is able, but if he is elderly and can no longer do it, then you could be the trustee. The trust could provide for conveyance of the home to you. There are also issues with that and depending on the circumstances, there may be reasons not to include the home in the trust too.

Your father needs to see an estate planning or elder care lawyer to make sure that things are done right.