Legal Question in Wills and Trusts in Arizona

Quit Claim or Warranty Deed for home in a Trust

My parents (both in their late 80's)have just completed their Trust.I am their only heir and the sole beneficiary to their Trust. My parents own a home that has both my father's and my signature on the deed, even though AZ is a community property state. My mother has Alzheimers and is incapacitated. My question is, should my dad do a Quit Claim to the Trust for the house or should he do a Quit Claim to me and I would become the sole owner of the house, or should he do a Warranty Deed to me? My object is to protect the house from being taken if the need comes for either one of them to have the need of a nursing home.

Asked on 3/22/05, 7:16 pm

2 Answers from Attorneys

Donald Scher Donald T. Scher & Associates, P.C.

Re: Quit Claim or Warranty Deed for home in a Trust

In order to answer your question, you must first examine the deed (whereby the property was purchased and conveyed to your parents or to your Dad and you). Who is the "grantee" on that deed. You can get a copy of the deed from the internet if the property is located in Maricopa County, and thus determine how the property is "titled." It makes now legal sense that the property is "owned by my parents and has my father's and my signature on the deed." If the grantee (title) is your father and mother, and your mom is incapacitated and cannot act for herself, then it would be necessary to establish a conservatorship in order to handle financial transactions affecting her property interests.

It is common practice when a living trust is established, that the parties will also make Wills, and Powers of Attorney (which could avoid the necessity of creating a conservatorship)and, that the parties will sign a deed conveying their family residence to the trust. If the house was transferred to trust ownership, then the trustee of the trust is the only one who could transfer the house to you individually and get it out of your parents' estate. If you apply for ALTCS, assets in a living trust will be counted to see if your parents qualify, however the house may be exempt or be used as collateral by the state so that the state can recover some of its costs when the house is sold.

You are right to consider and do ALTCS planning now, do not wait. When you apply for state aid, they will look back at all property transactions over the last 3 years, so you have to act quickly and pursue a well-formed strategy to finance their long term care, because they are likely to live a long long time.

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Answered on 3/24/05, 12:07 am
Kathy M O'Quinn O'QUINN LAW, P.C.

Re: Quit Claim or Warranty Deed for home in a Trust

If your mother is already incapcitated, is there a current power of attorney which gives your father the right to quit claim her interest to either you or the trust? If there is no power in place, you must take legal steps to have you mother declared incapacitated and a guardian appointed to take care of her assets before you can make any of moves toward quit claiming the house to you or to the trust. Sincerely, Kathy O'Quinn

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Answered on 3/23/05, 8:23 am

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