Can son remain in 55-and-over community after parent dies?

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Q. After someone dies and the estate is settled, how long can the deceased’s name remain on the deed? Can the house be listed to the deceased forever? This person was 70 and living in a 55-and-over Community with his 40-year-old son. A will left everything, including the house, to the son. Can the son remain in the 55-and-over community or will he have to sell the house and move?
— Curious

A. There’s a lot to consider here.

First, the deceased person’s name can remain on the deed indefinitely, but at the moment of death the property passes “by operation of law” regardless of what the deed says, said Nancy Heslin Reading, an estate planning attorney with Reading Law Firm in Newton.

“For instance, if the deed was titled as husband and wife, the surviving spouse would become the sole owner `by operation of law’ at the death of the first spouse regardless of whether a new deed was actually filed,” she said.

The important item here is what the by-laws of the 55-and over community say.

“I can’t imagine any circumstance under which the son could remain,” Reading said. ”A will can only convey what the decedent owned, and I doubt that the decedent owned the right to convey his/her property interest to a non-senior.”

The will also needs a careful reading, she said.

Does the will leave the residuary estate to the son, or does it specifically leave the home to the son?

“If the son inherits the residuary estate, then the home typically is liquidated and the proceeds are inherited by the son,” she said. “If it specifically leaves the home to the son, my suspicion is that the bequest must fail in which case I believe the home is liquidated and the proceeds pass as part of the residuary estate.”

Reading also said there’s a good possibility that all this time, the son may not have been living there with the approval of the by-laws, though there could be an exception to the by-laws for someone who is disabled.

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This story was originally published on Jan. 13, 2020.

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