What happens to my home if I am in a serious accident and I am unable to make decisions or take care of my property?
This is a guest post by Nancy H. Rossi, an estate planning attorney at Nancy Rossi Law in San Mateo.
For most married couples who only own community property assets and have the name of both spouses on all of the assets, the healthy spouse should be able to continue paying the bills and managing the assets, including any real property, if something happens to the other spouse. However, if you are not married or if you are married but own separate property (which was owned prior to the marriage or was gifted or inherited after the marriage), and the title is only held in your name, no one else will be able to control your property/separate property assets without court intervention unless you plan ahead and take certain actions without delay.
If a revocable living trust has been executed (and the assets have been transferred to the trust) then the person you named as your successor trustee may step in and make decisions concerning the assets if you are not able to make decisions. This allows for a smooth transition and the successor trustee can make mortgage payments, pay taxes, make necessary improvements to the property, collect rent, etc.
A successor trustee will only have control of trust assets, so even if a revocable living trust has been executed it is advisable to execute a power of attorney for financial management. A durable power of attorney will allow you to designate another person to assist you with the management of your non-trust assets. However, if you have not executed a trust, your agent would have control over all of your assets. If you are incapacitated, the person designated as your “agent” under the power of attorney would have the ability to control those non-trust assets, negotiate with the Social Security Administration, or represent you in a personal injury lawsuit. The idea is to utilize estate planning documents to nominate someone to control each different type of asset in your estate without the necessity of court intervention.
Without an estate plan and prior planning, no one has the authority to pay your mortgage, property expenses or collect rents until a representative or conservator is appointed by the court. A petition for conservatorship could be filed by the person’s spouse or loved one and only then would the person appointed by the judge have the authority to take control of the conservatee’s personal care as well as assets. The conservator is given the task of locating and changing the title on all assets; collecting all income; paying bills; investing money and protecting the assets. Although, the conservator of the estate is given broad control over the assets, but the process is supervised by the court and all actions must be approved by the judge. The conservator is also required to report to the court and to prepare annual accountings which can be expensive and time consuming. Planning ahead and executing a power of attorney can allow your nominated agent to make decisions on your behalf without the cost and expense of requiring such court intervention.
This article is intended to provide general information and should not be relied upon as legal advice. You should consult with an attorney about your particular circumstances before taking any action.
