My father is 80 years old and his wife Gracie is 72. They have been married for 32 years. My father has 3 children with my mom, he and his wife have no children together and she had no other children previously. She owned their home when they got married and they have had several subsequent mortgages; currently they are upside down in mortgage debt. Gracie has bequeathed the home to family members other than my Dad (her cousin’s children) upon her passing. We do not know if there are any provisions for my father to stay in the home if she predeceases him and cannot get that answer. If Gracie passes (she is not well) can her beneficiaries put my father out of his home? Would it make sense for him to have a Quitclaim Deed prepared, putting the home in his name to protect himself if she does pass before him? He is her Durable Power of Attorney. Thank you so much in advance.
ANSWER BY MARGARET CROSS-BELIVEAU:
The answer is that it depends on when she executed her will. If it was after the marriage or in contemplation of the marriage, then the will is in effect. If it was before the marriage, the marriage revoked the will, leaving her assets to go under the intestate statute.
If the will is valid, the your father can claim his elective share under the will. (He will probably need to hire an attorney to handle this.) His rights under Massachusetts General Laws 191 section 15, allow him to claim the first $25,000 + a life estate in 1/2 of the balance. So, no, the relatives could not evict him from the home. If the will was revoked, then he will also receive an ownership interest in the home.
If your step-mother did not intend for him to inherit her real estate, he can’t take it under the power of attorney. That would be an abuse of his fiduciary duties.
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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