Elder Law Report
Elder Law Report
Deeds, Trusts, and Not Losing Your House to the State
Your home represents years of memories, hard work, and financial investment—but does your estate plan adequately protect this precious asset? In this illuminating conversation, estate planning attorneys Jane Dearwester and Jordan McIntyre share their expertise on safeguarding your real property for future generations.
Drawing from her 15 years of real estate litigation experience, Jane explains why protecting property assets ranks among clients' top concerns. The good news? Multiple strategies exist to secure your real estate holdings. The attorneys break down the power of Ladybird Deeds (enhanced life estate deeds), which allow you to maintain complete control of your property during your lifetime while designating exactly who receives it after your passing—all while potentially qualifying for benefits like Medicaid without surrendering your home.
For those with property in multiple states or investment real estate portfolios, trust planning offers sophisticated protection against probate complications. As Jane explains, "You only need one trust to hold multiple properties from multiple states." The conversation also addresses special considerations for South Carolina properties, where alternative approaches like joint tenancy with rights of survivorship provide similar protections in a state that doesn't recognize Ladybird Deeds.
Whether you're protecting your family home or managing multiple investment properties, proper estate planning prevents your real estate from becoming vulnerable to creditors through probate. Connect with the attorneys at McIntyre Elder Law in Shelby, Charlotte, or Hendersonville to develop a customized strategy that preserves your property legacy. Visit mcrlaw.com or call 1-888-999-6600 to schedule your consultation today and ensure what you've built remains protected for generations to come.
Hi there, I'm going to start again. We're going to get situated here. Hi there, welcome to our Elder Law Report. I'm Jane Dearwester.
Jordan McIntyre:Hey, I'm Jordan McIntyre.
Jane Dearwester:We are here in our Hendersonville office today and, while we usually schedule and film these virtually this is awesome that we're right next to each other today these virtually this is awesome that we're right next to each other today. We are going to talk about today protecting your property in the context of estate planning. I would say when people come in, protecting their real estate is one of the number one concerns they have in putting their estate plan together. And, as a former and current real estate attorney, I have 15 years of real estate litigation. I used to be a closing attorney.
Jane Dearwester:So, having that real estate background, I fully understand how powerful estate planning can be with regards to your property and, again, how much time, money and energy that people put into their homes and into their real property investment. So we want to make sure that we advise you various ways to protect those investments and I'm happy to report there's more than one way to do it. So not just a one-size-fits-all method, but there are various ways to make sure your property is protected. So let's kind of start out, jordan, I'll let you maybe start with one and we'll kind of ping back and forth on these.
Jordan McIntyre:So Jane definitely has a lot more experience in real estate right, but doing the consults here and just speaking with people and knowing people you know, for a lot of individuals when you buy your home, that's an amazing moment. It's an exciting moment.
Jordan McIntyre:And you might be in that house for the rest of your life. This is your main asset. For a lot of people, it's your major asset and you want to pass that on to children or make sure that it can go to somebody and not be taken by the state. So I understand how incredibly important it is for my clients to protect their home, and there are multiple ways that you can do that right. For a lot of people, it's the ladybird deed, and that is an enhanced life estate deed where you can maintain control of that property during your life. You can sell it, you can convey it, do whatever you'd like to do with it and then, if you pass, it can go to children or anyone you would like it to go to.
Jordan McIntyre:And I really think it's effective because it allows you to still get qualified for a benefit like Medicaid, and then also it just keeps the home in your name and in your control. I don't want to give away my client's assets to other people unless it's absolutely necessary, potentially for some type of Medicaid spend down or Medicaid qualification process. And then additionally, jane, if you want to talk about trust planning, yeah, yeah.
Jane Dearwester:And just on the note of the Lady Bird deed, which is such a powerful device that we use in estate planning again, having formerly done real estate planning and all kinds of real estate work, I never knew about, never used Lady Bird Deed, so they are not necessarily your closing attorney is not going to recommend this. It's your estate planning attorneys who are going to recommend the use of a Lady Bird Deed. Lady Bird Deed is a very powerful document and really kind of a simple solution to what could be a big issue. But Lady Bird Deed isn't the only way to protect your property. You can also use trusts. We recommend putting your home into a trust for people who own real property in multiple states. I can use myself an example. The sole heir to my estate is my son, who's a minor, and so when I had Greg McIntyre do my estate plan, we created a trust and now my house is within the trust. So if anything happens to me while my son is a minor and even after he's 18, but between 18 and 25, when he's his frontal lobe is still forming my brother will be in charge of the trust. God forbid something happens to me, and so it feels really good to have that in place so trust can hold multiple properties. You only need one trust to hold multiple properties from multiple states.
Jane Dearwester:Trust planning is a very effective way, particularly for primary residents, but also for investment properties. So if you have rental properties that you want to protect and also insulate yourself from liability, you can use trust planning and also entity planning. For example, create an LLC to hold title to those properties and then put the LLC within the trust. Again, you're having these layers of protection to protect that property, which is what we're trying to create, and we really follow our client's lead. You tell us what you want to do and we give you options to put that plan into action. So we've got our ladybird deed. We've got trust planning kind of, along with LLCs. We also talked about some different kind of joint tenancy that could also help with protecting your property.
Jordan McIntyre:And with South Carolina property you know they don't have a ladybird deed. So we can do either a joint tenant with rights of survivorship deed so if you pass the property can go to someone else outside of probate or certain tenants and common deeds. We use those the 99% 1% deed to get people qualified for Medicaid in South Carolina or, if they have property in South Carolina right, to make sure that they can still get qualified here. But there's multiple ways to do it and make sure that it doesn't pass through probate, which will, you know, really make those assets available to any medical creditors or any type of creditor, so you don't want to lose your home in that way.
Jordan McIntyre:Come to McIntyre Elder Law, come meet with me and Shelby, or I'm also in Hendersonville now on Tuesdays for a little bit. So we have locations at Shelby, charlotte and Hendersonville. Visit the website at wwwmclrlawcom. You can learn all about Lady Bird Deeds, trust planning, estate planning, protecting your property and probate right on that website and give us a call at 1-888-999-6600. And it was great to be here in person with you.
Jane Dearwester:Yes, this is good for a change. Thank you so much. Thank you, guys.