Deeds, Trusts, and Not Losing Your House to the State

Your home represents years of memories, hard work, and financial investment—but does your estate plan adequately protect this precious asset? In this illuminating conversation, estate planning attorneys Jane Dearwester and Jordan McIntyre share their expertise on safeguarding your real property for future generations.

Drawing from her 15 years of real estate litigation experience, Jane explains why protecting property assets ranks among clients' top concerns. The good news? Multiple strategies exist to secure your real estate holdings. The attorneys break down the power of Ladybird Deeds (enhanced life estate deeds), which allow you to maintain complete control of your property during your lifetime while designating exactly who receives it after your passing—all while potentially qualifying for benefits like Medicaid without surrendering your home.

For those with property in multiple states or investment real estate portfolios, trust planning offers sophisticated protection against probate complications. As Jane explains, "You only need one trust to hold multiple properties from multiple states." The conversation also addresses special considerations for South Carolina properties, where alternative approaches like joint tenancy with rights of survivorship provide similar protections in a state that doesn't recognize Ladybird Deeds.

Whether you're protecting your family home or managing multiple investment properties, proper estate planning prevents your real estate from becoming vulnerable to creditors through probate. Connect with the attorneys at McIntyre Elder Law in Shelby, Charlotte, or Hendersonville to develop a customized strategy that preserves your property legacy. Visit mcrlaw.com or call 1-888-999-6600 to schedule your consultation today and ensure what you've built remains protected for generations to come.

Episode Transcript

Jane Dearwester (00:03):
Hi there, I'm going to start again.
We're going to get situatedhere.
Hi there, welcome to our ElderLaw Report.
I'm Jane Dearwester.

Jordan McIntyre (00:13):
Hey, I'm Jordan McIntyre.

Jane Dearwester (00:15):
We are here in our Hendersonville office today
and, while we usually scheduleand film these virtually this is
awesome that we're right nextto each other today these
virtually this is awesome thatwe're right next to each other
today.
We are going to talk abouttoday protecting your property
in the context of estateplanning.
I would say when people come in, protecting their real estate

(00:36):
is one of the number oneconcerns they have in putting
their estate plan together.
And, as a former and currentreal estate attorney, I have 15
years of real estate litigation.
I used to be a closing attorney.
So, having that real estatebackground, I fully understand
how powerful estate planning canbe with regards to your
property and, again, how muchtime, money and energy that

(00:58):
people put into their homes andinto their real property
investment.
So we want to make sure that weadvise you various ways to
protect those investments andI'm happy to report there's more
than one way to do it.
So not just a one-size-fits-allmethod, but there are various
ways to make sure your propertyis protected.

(01:21):
So let's kind of start out,jordan, I'll let you maybe start
with one and we'll kind of pingback and forth on these.

Jordan McIntyre (01:27):
So Jane definitely has a lot more
experience in real estate right,but doing the consults here and
just speaking with people andknowing people you know, for a
lot of individuals when you buyyour home, that's an amazing
moment.
It's an exciting moment.
And you might be in that housefor the rest of your life.
This is your main asset.

(01:49):
For a lot of people, it's yourmajor asset and you want to pass
that on to children or makesure that it can go to somebody
and not be taken by the state.
So I understand how incrediblyimportant it is for my clients
to protect their home, and thereare multiple ways that you can
do that right.
For a lot of people, it's theladybird deed, and that is an

(02:10):
enhanced life estate deed whereyou can maintain control of that
property during your life.
You can sell it, you can conveyit, do whatever you'd like to
do with it and then, if you pass, it can go to children or
anyone you would like it to goto.
And I really think it'seffective because it allows you
to still get qualified for abenefit like Medicaid, and then
also it just keeps the home inyour name and in your control.

(02:32):
I don't want to give away myclient's assets to other people
unless it's absolutely necessary, potentially for some type of
Medicaid spend down or Medicaidqualification process.
And then additionally, jane, ifyou want to talk about trust
planning, yeah, yeah.

Jane Dearwester (02:50):
And just on the note of the Lady Bird deed,
which is such a powerful devicethat we use in estate planning
again, having formerly done realestate planning and all kinds
of real estate work, I neverknew about, never used Lady Bird
Deed, so they are notnecessarily your closing
attorney is not going torecommend this.
It's your estate planningattorneys who are going to

(03:12):
recommend the use of a Lady BirdDeed.
Lady Bird Deed is a verypowerful document and really
kind of a simple solution towhat could be a big issue.
But Lady Bird Deed isn't theonly way to protect your
property.
You can also use trusts.
We recommend putting your homeinto a trust for people who own

(03:33):
real property in multiple states.
I can use myself an example.
The sole heir to my estate ismy son, who's a minor, and so
when I had Greg McIntyre do myestate plan, we created a trust
and now my house is within thetrust.
So if anything happens to mewhile my son is a minor and even

(03:53):
after he's 18, but between 18and 25, when he's his frontal
lobe is still forming my brotherwill be in charge of the trust.
God forbid something happens tome, and so it feels really good
to have that in place so trustcan hold multiple properties.
You only need one trust to holdmultiple properties from

(04:13):
multiple states.
Trust planning is a veryeffective way, particularly for
primary residents, but also forinvestment properties.
So if you have rentalproperties that you want to
protect and also insulateyourself from liability, you can
use trust planning and alsoentity planning.
For example, create an LLC tohold title to those properties

(04:38):
and then put the LLC within thetrust.
Again, you're having theselayers of protection to protect
that property, which is whatwe're trying to create, and we
really follow our client's lead.
You tell us what you want to doand we give you options to put
that plan into action.
So we've got our ladybird deed.
We've got trust planning kindof, along with LLCs.

(05:00):
We also talked about somedifferent kind of joint tenancy
that could also help withprotecting your property.

Jordan McIntyre (05:09):
And with South Carolina property you know they
don't have a ladybird deed.
So we can do either a jointtenant with rights of
survivorship deed so if you passthe property can go to someone
else outside of probate orcertain tenants and common deeds
.
We use those the 99% 1% deed toget people qualified for
Medicaid in South Carolina or,if they have property in South

(05:30):
Carolina right, to make surethat they can still get
qualified here.
But there's multiple ways to doit and make sure that it
doesn't pass through probate,which will, you know, really
make those assets available toany medical creditors or any
type of creditor, so you don'twant to lose your home in that

(05:52):
way.
Come to McIntyre Elder Law, comemeet with me and Shelby, or I'm
also in Hendersonville now onTuesdays for a little bit.
So we have locations at Shelby,charlotte and Hendersonville.
Visit the website atwwwmclrlawcom.
You can learn all about LadyBird Deeds, trust planning,
estate planning, protecting yourproperty and probate right on

(06:15):
that website and give us a callat 1-888-999-6600.
And it was great to be here inperson with you.

Jane Dearwester (06:22):
Yes, this is good for a change.
Thank you so much.
Thank you, guys.