Posts Tagged ‘life estate’

“Vest Pocket” Deed Is Valid to Transfer Family Farmland

It has been a while since we wrote about “vest pocket” deeds. That reflects the reality that they are more common in fiction and mythology than in the real world of legal proceedings, but they occasionally do crop up. The problems of validity and effect can involve lawyers after the signer’s death, even in cases where avoiding legal complications was the signer’s primary goal.

Cecil Stockwell lived all of his 91 years in rural South Dakota. He acquired and farmed land totaling over 1,000 acres in 14 parcels. He had five children; for the last twenty years of his life he lived (and was farming partners) with his son Lloyd Stockwell.

In 1992 Cecil Stockwell visited a local lawyer in Freeman, SD, about estate planning. He had the attorney prepare a power of attorney naming Lloyd as his agent, plus four separate deeds to his properties. Each deed conveyed a different number of acres of land to one of his four sons — Lloyd, for instance, would receive 594 acres, and his oldest son Cecil, Jr., would receive 80 acres. Each of the four deeds retained for Cecil the right to farm, rent or use the land; on his death the four deeds would have conveyed their respective properties to his sons.

“Would have” is the operative phrase here. Cecil never recorded the deeds, and he never gave any of them to his sons. He took them home and filed them away. They became what are sometimes called “vest pocket” or, more simply, “pocket” deeds. They would not be effective until actually delivered to the recipients or recorded; their effect if discovered after Cecil’s death would be uncertain.

Cecil did not let the deeds create that confusion, however. In 2001, after he became unhappy with one of his sons, Cecil Stockwell asked his daughter-in-law to help him redraft the old, undelivered deeds. With her help he modified the properties that would be transferred to each of his sons, with the result that Lloyd’s inheritance would be significantly larger. One son (the one he had become unhappy with) was left out entirely, one’s share stayed the same, and the fourth son’s share was reduced somewhat.

After he signed all three of the new deeds and had them notarized, Cecil returned home and handed them to Lloyd, saying “Here you go” or words to that effect. Lloyd took the deeds into his father’s bedroom (remember that he lived with Lloyd) and put them in the dresser that Cecil used.

Two years later there was more family disharmony when three of Cecil’s sons initiated a guardianship and conservatorship action, seeking to have him put in a nursing home. Lloyd helped him get a lawyer to fight the petition; in the course of that proceeding his lawyer had a videotape prepared showing Cecil’s ability to identify all of his children and describe where they lived and what they did for a living. He did get the size of his farm wrong (he said 300 acres, when it was really more than 1,000 acres), and he had trouble naming one of his grandchildren or remembering that his ex-wife had remarried.

Six months after the guardianship petition was initiated Lloyd told Cecil that it was time for him to move into a nursing home. Cecil reminded Lloyd that the deeds were still in the dresser drawer, told him to get them out and have them recorded. Then he asked to be taken on a last tour of his farmland and moved into the nursing home. Lloyd had the deeds recorded a few days later. Four months after that Cecil died.

Lloyd then filed a lawsuit — a “quiet title” action — to have the deeds validated and his inheritance confirmed. His brothers objected, saying that their father was incompetent at the time of signing and/or at the time the deed was delivered. The trial judge found that the three deeds signed in 2001 were effective, and confirmed the transfer of the farmland to three sons.

The south Dakota Supreme Court agreed with the trial judge and affirmed the verdict. One key element of that ruling: the appellate judges agreed that the deeds were delivered when Cecil Stockwell handed them to his son Lloyd — or at least that Lloyd’s deed was. That meant that the question of Cecil’s capacity had to be tested as of 2001, when the deeds were signed and handed to Lloyd, rather than 2004, when they were recorded. Interestingly, an argument could be made that the deeds to the other two sons had to be tested against Cecil’s capacity in 2004, even though Lloyd’s deed only raised questions about Cecil’s capacity in 2001. Stockwell v. Stockwell, October 13, 2010.

Could a lawyer have helped Cecil Stockwell accomplish what he wanted? Absolutely, and at a much smaller cost than his sons ended up paying to their lawyers to sort out the meaning and effect of the vest pocket deeds. With good legal advice, Cecil might have gone ahead and recorded the “life estate” deeds he signed in 2001 — though he would then have given up the ability to make further changes. A lawyer might have recommended that he transfer all of his property into a revocable living trust, which would have allowed him to retain the ability to change who would receive which parcel at his death, and even to make clear who would farm each parcel until that time. Even a will naming beneficiaries would have been less expensive than the vest pocket deeds — as it turned out, his sons filed a probate proceeding anyway, and avoidance of probate might well have been Cecil’s primary motivation.

Because Cecil Stockwell did not live in Arizona (or Arkansas, Colorado, Indiana, Kansas, Missouri, Montana, Michigan, Nevada, New Mexico, Ohio, Oklahoma or Wisconsin) he did not have one useful option available to him. An attorney in those states could have told him about the concept of a “beneficiary” deed — sometimes called a “transfer on death” or “TOD” deed — which might have been exactly what he needed. Such a deed is revocable, but makes the transfer automatic upon the owner’s death. If that had been available to him, it might have let him record his deeds back in 1992 and again in 2001 without blocking him from making later changes as his feelings toward his sons changed.

Reciprocal Wills Enforceable After Death of One Spouse

JULY 26, 2010 VOLUME 17, NUMBER 23
Imagine a couple, each married for the second time. Perhaps each has children from a first marriage. Perhaps the couple has been married for years — even decades. They think of all the children as “their” children, even though they fully understand that the other spouse’s children are stepchildren.

One of the spouses — let us say the husband — dies. He leaves his interest in the family home, together with all the couple’s accumulated wealth, to his widow; his will specifies that on the second death all of the children share the estate equally. His children remain in contact with their stepmother for the next decade, though that contact lessens over time. When she dies, what happens to the home, the bank accounts and the remaining wealth?

This scenario plays out again and again. Most often, the deceased husband’s will is irrelevant. If the property all passed to the wife without restrictions, she is free to change her will, to transfer the property into trust, to spend it or even to give it away. But that is not always the case.

Ralph and Elaine Lawson married in 1971. They owned 12 acres of Iowa land as “joint tenants with right of survivorship.” They had three children between them: Ralph’s son and daughter Roger and Le Ann, and Elaine’s son Lonnie. Just to complicate things further, Ralph later adopted Lonnie.

In 1987 Ralph and Elaine signed identical wills. Each left everything to the other. On the second death, the wills provided that fifty percent of the combined estate would go to Lonnie, twenty percent each to Roger and Le Ann, and ten percent to the couple’s church. The wills contained an unusual provision: each included language that indicated the couple had agreed “that neither will change our will” without the other’s consent.

Ralph died first. The property passed to Elaine automatically because of the joint tenancy title, so Ralph’s will was not filed with the Iowa probate courts.

A few years later Elaine changed her estate plan. First she transferred the acreage to her son Lonnie, reserving a life estate for herself. Then she signed a new will, leaving the same proportions of her estate to Lonnie (50%), Roger (20%) and Le Ann (20%), but changing the church which would receive the remaining 10%. Shortly after that, Elaine died.

Roger and Le Ann sued to enforce the terms of their father’s and stepmother’s original wills. They alleged that the wills amounted to a contract, that Elaine’s transfer of the property to Lonnie violated that contract, and that the court should impose a trust upon the property to secure its return to the original beneficiaries. The trial judge reviewed the two wills and agreed with Roger and Le Ann.

The Iowa Court of Appeals upheld that ruling, ordering the imposition of a trust on the 12 acres. The language of Ralph’s and Elaine’s wills made it clear, according to the appellate judges, that their intent was to prevent the survivor from changing the estate plan by a new will or by transferring property during lifetime.

Lonnie argued, unsuccessfully, that the reciprocal wills should not prevent transfers of the acreage because it did not come into Elaine’s estate by virtue of Ralph’s will. The court dismissed that objection, noting that the language of the wills was broad enough to encompass any estate planning technique, whether it might be a will, a gift, or a living trust. The appellate judges also rejected Lonnie’s argument that his parents’ wills should not have been admitted to the court proceeding; the wills were not being admitted to probate, said the judges, but were being admitted to prove a contract. Consequently, the standards and requirements for admission were those governing contract documents rather than wills. Cunningham v. Lawson, July 14, 2010.

Would Arizona courts reach the same result? It is not completely clear, since the law of reciprocal wills (sometimes called mutual or contractual wills) is not well developed. What is clear in Arizona law is that reciprocal wills can be enforceable; what is less clear is whether they might prevent lifetime transfers of property by the surviving spouse.

One reason that the law is less than clear is that truly reciprocal wills are uncommon. Arizona’s probate code makes clear that the mere fact that wills are identical does not mean they embody a contract not to change the terms; in order to make the agreement binding it must be expressly stated in the wills or in a contractual document. Because that is uncommon, there is little law interpreting such terms.

What is more clear is that the question we hear so often is usually easy to answer. “Does my stepmother [or stepfather] have the right to leave the house she inherited from my dad [or mom] to her kids from her prior marriage?” Absent a clear contract not to change the will, or a trust provision prohibiting the transfer, the answer is likely to be: “I’m sorry, but yes.”

Mother Sues Son Over Transfer of Home and Bank Accounts

MARCH 15, 2004 VOLUME 11, NUMBER 37

Louise Friar worried about what would happen to her modest estate if she ever needed to go into a nursing home. She owned her home, and she had two certificates of deposit that represented her life savings. Whether she got the idea from friends, professional advisors, her own analysis, or conversations with her two sons, she though she had come up with a surefire way to protect her assets from long-term care costs.

First Ms. Friar went to her bank, where she gave instructions that each of her two CDs was to be transferred into the name of one of her sons—but that the income payments should continue to be paid into her checking account. Then she visited her attorney and directed him to prepare a deed transferring the house to her sons, reserving a life estate.

By taking these two steps, Ms. Friar was assured that she would continue to have the use of her major assets for her life, but that her sons would automatically receive them on her death. After a while, however, she had second thoughts about the wisdom of her actions. She had, after all, given up control over all her assets. She had not just made them payable to her sons on her death, but had actually given them the CDs and an interest in her home.

Ms. Friar asked her sons to return her assets. After some discussion one son, Darrell, agreed and transferred property back to Ms. Friar. Her other son, J.D., refused to cooperate. So Ms. Friar sued J.D., alleging that he had coerced her into making the transfers, and that he had defrauded her.

A Georgia judge agreed with Ms. Friar and ordered J.D. to return her property even before a full hearing on her allegations. J.D. appealed, and the Georgia Court of Appeals reversed that order.

The appellate court did not decide that Ms. Friar could not get her property back, but it did decide that the issue was not as clear as the lower court had thought. The case was sent back to the trial court for a full hearing to determine whether J.D. Friar really had coerced or defrauded his mother. Friar v. Friar, Feb. 18, 2004.

Ms. Friar’s story is not unusual. Seniors frequently transfer assets to their children in order to “protect” them from nursing home costs. Sometimes those transfers actually result in protection, but sometimes they simply complicate the family situation. When transfers are made, whether they are well-advised or not, they are usually irrevocable. Ms. Friar will recover her assets only if she can show fraud or coercion by her son—and she will have paid significant legal expenses. Of course, she also will have had to sue her own son in order to undo the transfers.

Purchase of Life Interest Does Not Gain Medicaid Coverage

JULY 7, 2003 VOLUME 11, NUMBER 1

Qualifying a family member for Medicaid assistance with the cost of nursing home care can be complicated. When Pat Monroe’s mother went into a nursing home in Arkansas, Ms. Monroe had a clever idea: she had her mother buy an interest in her own home. Unfortunately for her it didn’t work as she intended.

Ms. Monroe’s mother, Berniece Groce, had moved into the Clay Cliff nursing home in July. Ms. Monroe held a power of attorney for her mother, and she used it to pay the nursing home expenses for nearly a year.

Ten months later Ms. Monroe took an unusual step. She bought a home for her mother—or at least an interest in a home. Using the last of her mother’s savings she paid $43, 953.13 for a “life estate” in Ms. Monroe’s own home.

The holder of a life estate is entitled to the use of the property for the rest of their lives, but their interest expires automatically on death. It is not uncommon for a property owner to transfer title to children or others, retaining a life estate. By this means the owner can dispose of the “remainder” interest during life while protecting his or her own right to use the property for life. But what Ms. Groce did (through her daughter) was different. She did not retain an interest in property she already owned, but instead purchased the life interest in property she had never owned before.

Because a Medicaid recipient is entitled to retain his or her home, Ms. Monroe reasoned that her mother’s life estate in the residence would be protected. Ms. Groce would qualify for Medicaid, Ms. Monroe could continue to live in the home (with her mother’s permission, of course), and her mother’s interest in the home would automatically disappear at her death.

Unfortunately for Ms. Monroe, the state Medicaid agency saw things differently. In its view, the purchase of the life estate was nothing more than Ms. Groce giving away over $40,000. She did not really purchase anything of value, reasoned the Medicaid agency, and she never actually resided in the home.

After Medicaid eligibility was denied Ms. Monroe appealed on her mother’s behalf. The Arkansas Court of Appeals agreed with the Medicaid agency and the trial court, and denied Ms. Groce’s Medicaid eligibility until the expiration of the disqualification period imposed by the $43,953.13 gift. Groce v. Director, Arkansas Dept. of Human Services, June 11, 2003.

Arizona Medicaid regulations require that the Medicaid applicant either actually resides in the home or “has resided” there. The result would probably be the same in Arizona.

Purchase of Life Estate Does Not Gain Medicaid Eligibility

MARCH 3, 2003 VOLUME 10, NUMBER 35

Stella Thompson was living alone in Virginia when she developed a serious leg infection requiring that she be admitted to a nursing home. Her sister Josephine Greene moved her to Florida, into a nursing home near Ms. Greene’s home, and applied for Medicaid assistance with the cost of the nursing home. As part of that move, Ms. Greene sold an interest in her own home to her sister.

Medicaid, of course, provides medical care for the disabled and elderly poor. If Ms. Thompson’s available resources exceeded $2,000 she would not qualify for nursing home assistance from the Florida version of the Medicaid program. Ms. Thompson had over $20,000 in cash reserves, and so she was ineligible upon her arrival in Florida and admission to the facility.

On behalf of her sister Ms. Greene could have simply paid for nursing home care until the remaining $20,000 was reduced to $2,000, and then applied for Medicaid eligibility. She chose instead to buy her sister a home. More precisely, she decided to sell her sister a life estate in her own condominium.

A “life estate” gives the owner the right to occupy, rent out or otherwise control a property for life. On the death of the life estate holder, however, the property automatically becomes the property of the person named as the holder of the “remainder” interest. In Ms. Thompson’s case, Ms. Greene used a power of attorney to buy a life estate in Ms. Greene’s condominium for Ms. Thompson—giving her the right to live there, and even to charge Ms. Greene rent to stay in what had been her condominium.

Why would Ms. Greene take such a step? Because Medicaid recipients are permitted to retain their homes, Ms. Greene reasoned that Ms. Thompson could qualify for Medicaid without having to dispose of her new interest in the condominium, and that Ms. Greene would be permitted to keep the $18,500 purchase price.

The Florida Medicaid agency did not agree. The hearing officer considering Ms. Thompson’s application discredited the appraiser hired by Ms. Greene to value her sister’s life estate, and continued to treat the $18,500.00 as an available resource. Ms. Thompson appealed to the Florida Court of Appeals.

The appellate court agreed with the Medicaid agency. Even though no evidence was introduced by the agency, said the judges, the transaction “was a sham to gain eligibility … in the absence of any competent evidence to support a reasonable purpose and a market value for the transfer.” Thompson v. Dep’t. of Children and Families, January 24, 2003.

State Must Formally Adopt Its Medicaid Estate Recovery Rules


In our American system of government the legislature is in charge of making law and policy, and the administrative branch’s job is to interpret and implement those laws without imposing the bureaucrats’ own ideas on the legislature’s programs. That ideal conception, however, runs afoul of the reality of government. Because it is simply impossible to anticipate every variation of a problem, much of the actual administration looks like, and is, legislative in nature.

To keep the making and implementation of administrative policies as public and responsive as possible, most states have adopted laws requiring agencies to publish their planned regulations, submit them to public comment, and consider input from citizens. The law compelling these practices is usually called the Administrative Procedures Act (APA) or some similar name. Arizona has such a law, as does California.

Medi-Cal, California’s version of Medicaid, includes a provision requiring its administrative agency to seek reimbursement for Medi-Cal payments from the estates of at least some deceased Medi-Cal recipients. California law defines “estate” to include the deceased beneficiary’s probate estate, as is true in Arizona and every other state. But California goes further, and permits its estate recovery program to pursue any property that belonged to the deceased beneficiary at the time of death, including property held in joint tenancy or “other arrangement.” The problem: “other arrangement” is not defined in the California law.

Medi-Cal administrators decided that the law should apply to annuities and life estates in at least some circumstances. It first pursued, then decided not to pursue, annuities. In the case of life estate property, Medi-Cal decided to seek recovery if the Medi-Cal beneficiary had once owned the property and transferred it to another person, reserving both a life estate (that is, the right to live on the property for life) and a right to sell the property and retain the proceeds. Neither decision was made as part of a public rule-making process.

A non-profit group, California Advocates for Nursing Home Reform (CANHR) sued to force Medi-Cal to properly publish and adopt its rules. The State objected, and a trial judge dismissed CANHR’s complaint.

The California Court of Appeals has now reversed that decision, finding that there is at least some evidence of improper rule-making. CANHR will now be given a chance in court to prove its allegation that Medi-Cal relies on “underground guidelines and criteria” in pursuing estate recovery. CANHR v. Bonta, January 8, 2003.

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