Presumably, your parents owned the house as joint tenants, so the house is now in your mother’s name alone. You will probably have to record a death certificate for your father to clear up title. You may or may not be able to transfer the house to yourself and your husband using your mother’s durable power of attorney. The question is whether the power of attorney authorizes you to make gifts to yourself. If so, you can sign the deed on your mother’s behalf. You will have to record the durable power of attorney along with the deed.
If the document does not grant you this power, you can only accomplish the conveyance by betting appointed as guardian and conservator (different states use different terminology) for your mother and may also need separate court approval.
Before you go ahead with the conveyance, you should consider the capital gains consequences of the transfer in the event you and your husband ever chose to sell the house. It received a one-half step-up in basis upon your father’s death. If you wait until your mother’s death to transfer title to yourself, it will receive a 100% step-up at that time. Instead of an outright transfer, you might want to put the house in a revocable trust or life estate to avoid probate and get the step-up.
Harry S. Margolis practices elder law, estate, and special needs planning in Boston and Wellesley, Massachusetts. He is the founder of ElderLawAnswers.com and answers consumer questions about estate planning issues here and at AskHarry.info.
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