Legal Question in Wills and Trusts in North Carolina

My grandfather passed away 7 years ago. My mother was name executrix of the will and in the will the house my grandfather owned (located in North Carolina) was willed to my mother as the only biological heir. She was an only child. My biological grandmother (his first wife) passed away many years before he did. He remarried within two years of my grandmother's death. There is a pre-nuptial agreement between my grandfather and his second wife (my step-grandmother). The pre-nuptial agreement gives his second wife (his wife at the time of his death) a life estate for the house with the house going to his heir when she dies. My mother, who is elderly, neglected to ever have the house changed to her name after my grandfather passed away. His second wife is still living (in an nursing home) and is not legally competent. What is my mother's legal status with the house? Can she sell or rent the house?

Asked on 3/13/13, 8:55 pm

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Probably not. The second wife has a life estate. The second wife can rent it out or convey the life estate to your mother if she wishes. If the second wife is on longer mentally competent, then she would need a power of attorney to do that for her. If she does not have an agent under a power of attorney, then a guardian would need appointed. Or you could just wait until the second wife passed away if she is not in good health and is elderly. The house could only be sold if the second wife's agent or guardian and your mother agreed. The second wife and your mother would then apportion the proceeds.

However, you indicate the second wife is in a nursing home. How is she paying for her care? Is she on Medicaid? If so, then selling the home could have drastic consequences for her as Medicaid recipients are only allowed to have no more than $2000 per month in assets. A sale of the home would trigger her receipt of funds which would render her ineligible for Medicaid.

What was done by your grandfather was done. Unless the pre-nuptial agreement gave the second wife a conditional life estate (it could say that if she ever leaves the home for 90 days she forfeits the life estate) then the best thing to do might be to wait until she dies at which time your mother will own 100% of the property.

If you have any questions you might want to have your grandfather's will and pre-nuptial agreement reviewed by a probate attorney.

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3/13/13, 9:14 pm

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