Legal Question in Wills and Trusts in New Jersey

My stepfather is pressuring my mother to change her will - primarily where it concerns the rights to her property. The deed is soley in her name and her current will has the house going to me, but with the stipulation he may remain living there until his death. He now wants the house willed to him, and then when he dies, it would go to me. My concern is, should he have to go into a nursing home/assisted living someday, I've heard they can take your property. Is that true? And is there any other concerns I should have? I'd hate to see everything my mother worked hard for gone in one swoop if there's something we're not considering here. Is there any protective language we can place in the new will - perhaps giving me joint-ownership?


Asked on 9/15/12, 3:56 am

2 Answers from Attorneys

Miriam Jacobson Law Offices of Miriam N. Jacobson

It sounds like what your mother's will currently provides is for a "life estate" to your stepfather, and a "remainder to " you. This means that after his death, it becomes your property. This would probably protect the house from being subject to a claim by a nursing home or similar provider - but I do not know Medicaid or Elder law, and this is another reason why people should consult lawyers with such experience to prepare their wills.

If her will is properly written - and please never use a "form" - this will not be a problem. Someone should explain to him that this is already what he's asking for.

Just remember, whatever the will says, your mother has the right to change it as many times as she wants, because it becomes final only when she dies. The only exception to that is if she is forced to change her will and/or if she is not mentally competent to create a will. These are difficult to prove, but a will can be successfully contested for those reasons.

THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU.

* If the answers to your question confirm that you have a valid issue or worthwhile claim, your next step should almost always be to establish a dialog with a lawyer who can provide specific advice to you. Contact a lawyer in your county or township.

* Another reason for contacting a lawyer is that it is often impossible to give a good answer in the Internet Q&A format without having more information. The unique circumstances of your situation and things that you may not have thought to mention in your question may completely change the answer. If you want to be sure that you have a complete answer to your question and an understanding of what that answer means, establish a connection with a lawyer who practices in the area of your concern.

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Answered on 9/15/12, 7:54 am
Walter LeVine Walter D. LeVine, Esq.

I agree with Miriam about the life estate, but have some suggestions, as I do this type of work regulalrly. If she is allowing him a life estate, there should be specifics included on what expenses he is responsible to pay and what her estate/heirs may be responsible for. Include things like real estate taxes, homeowners insurance, utilities, cable TV, major and minor repairs, etc., and under what conditions he is deemed to have vacated the house to allow the life estate to be terminated (e.g., extended vacations, cohabitation, moving with no possibility of return - like a nursing home). Under NJ law, a spouse (your step-father) automatically has a life estate in the marital residence, but the laws providing for this do not spell out what obligations for payment follow. I recommend minor repairs be specified by dollar amount to repair (for example - he is responsible for all repairs under $500 and the estate/heirs are responsible for more costly ones, like a new roof, furnace, etc.). Without these provisions included, I have seen litigation required to resolve issues that could have been resolved by a properly worded document. This both protects you and him. This is a reply to an Internet question and the response is provided for information purposes only and is not intended to be legal advice or as creating an attorney-client relationship.

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Answered on 9/15/12, 10:56 am


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