The person who has the will, is the Mother of 4 children. She is also diagnosed with mild dementia. She has decided to give one piece of her property to one dependent, but it was set to be given to another in her will. The 4 dependents are all in favor of this gift. However, there is a piece of property that the dependent who is going to be gifted this property is due to be given in the will. What we want to do is gift him the new property and sign his future property over to two of the other siblings. Is there any legal means to do so or can her will be changed?
ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:
You need to consult with an elder law attorney. First, at some point in the near future your mother may need to enter a nursing home and apply for Medicaid. Gifting property within the five year look back will cause a disqualification period.
Second, gifting property instead of waiting for an inheritance means that the beneficiary takes the property at the basis that your mother had in the property. By waiting for the inheritance, the gain in the property is eliminated because the heir receives the property with a new basis of the fair market value on the date of your mother’s death.
Third, revising a will if a person has dementia is dangerous. You mother needs to be able to understand what document she is signing and what the ramifications are. As she already has a diagnosis, the new will can be challenged after her death. You will be put in the position of having to prove that your mother had mental capacity on the day she signed.
Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.
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