Legal Question in Elder Law in Massachusetts

Re: is a deed with life estate included in a will?

Technically, a life estate deed passes the house on its own, outside of the Will, but it is still a good idea to mention it in the Will just in case something is wrong with the deed and it becomes invalid - the WIll acts as a "backup" ensuring that the house is transferred as your father intended.

HOWEVER, there are many reasons to not execute a life estate deed, vs. only a few good reasons to go ahead with one. Your father must meet with an elder law attorney - and not just a general practitioner - before signing such a deed. He can harm his ability to provide for his own care and well-being if he goes into a life estate deed without thoughtful, professional guidance.

Re: is a deed with life estate included in a will?

A deed in which he retains a life estate will take the property out of his estate upon his death. Nevertheless, the Will should anticipate that the deed is defective or the property is sold or otherwise.

Before taking such an action, your father should meet with an attorney, have a Will drawn the reflects what he wants done with his estate as well as understanding the impact of such a gift should he need medicaid within 5 years of the date of the gift. He will also need to file a gift tax return, but unless the gift is worth more than $1 Milliion it will not result in a tax needing to be paid, assuming he has no prior taxable gifts.

Please feel free to contact me if you have more questions.

Re: is a deed with life estate included in a will?

Property in a life estate passes outside the will and the probate process, so there is no need to mention it in the document.

However, there are potential MassHealth implications for your father and tax implications for the children. I strongly suggest that before he makes the transfers, he consult with me or another elder law attorney to be sure this is the right move for him.