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Elderlaw: 01/15/2007

Sisters Dispute Land Disposition



Dear Len & Rosie,

My sister and I inherited a piece of property in Sonoma County from our parents, that cannot be subdivided. It is worth $600,000. The problem is, my sister does not want the land and I donít have the money to buy her out. Can she force us to sell the land?

Margot

Dear Margot,

Unluckily for you, the law is on your sisterís side, not yours. There is a long-standing legal tradition against ďrestraints against alienationĒ, which is legalese for the law doesnít like people getting stuck with property they canít get rid of. When a piece of land, such as your inheritance, is owned by two or more people, then any one owner can usually force a sale of the property in an action for partition.

If push comes to shove, and your sister sues you in a partition action to force you to buy her out or sell the property with her to someone else, sheís going to win unless you can somehow convince the court that itís in the best interest of both of you to continue owning the property. Good luck on that one. Your best bet is to hope that your sister wonít go so far as to sue you, because if she does, you will probably lose.

And even if you were able to buy her out, youíd still have problems. Property transferred between siblings is subject to a property tax reassessment under Proposition 13. You are still paying property taxes based on their Prop. 13 assessment, but that will change if you somehow manage to buy out your sister.

Itís all water under the bridge now, but it may have been possible for your parents to have prevented your problems. They could have given this property to you and other assets to your sister, even if that resulted in you getting more. They could also have tied up the property in a trust for you and your sisterís benefit if they wanted to keep the family homestead in the family. This is something for you to think about when it comes time to creating your own estate plan.

Len & Rosie



Dear Len & Rosie,

My 83-year old father was living at home alone, but he recently suffered a stroke and now he canít be by himself. He is a veteran of World War II. He owns a home and has around $200,000 in savings. My uncle in North Carolina has more money than my father and he is receiving some kind of benefit from the VA that pays towards his care in an assisted living facility. When my mother inquired about it with the VA, she was told they have too much money to qualify. Can you help?

Jane

Dear Jane,

There is a little known and often-misunderstood Veterans Administration benefit known as ďAid & Attendance.Ē Any veteran who served in active duty at least 90 days, including at least one day during wartime, is eligible to apply for benefits as long as he or she received an honorable discharge from the military. Widows and widowers of veterans are also eligible to apply. Aid & Assistance can help pay for in-home care, or care in nursing homes, assisted living facilities or board and care homes. Most veterans and surviving spouses who are in need of such care can qualify.

To qualify, your father must have a medical reason why he cannot live independently and he must need regular assistance and care with the activities of daily living, such as bathing, dressing, etc. He can qualify if he suffers from dementia, Alzheimerís disease, or another mental illness. A letter from your fatherís physician is usually enough for the VA. Once accepted into the program, a married veteran can receive up to $1,801 per month and a single or widowed veteran can receive up to $1,519 per month. Unmarried surviving spouses can receive up to $976 per month. All of these benefits are tax-free.

The program is means tested, meaning the applicant must meet certain income and asset requirements. The VA will tell you if you do or donít qualify, as they did with your mom, but they will not give you any advice as to how your father may qualify for benefits. When applying for Aid and Attendance benefits, your uncle likely had outside assistance from someone who understood the VA system and helped him through the process of early qualification.

If you, a family member or other loved one is a U.S. military veteran with wartime service and you need assistance, these benefits may be available to you. This program is difficult to explain in the limited space of a newspaper column, so if any of you have further questions, please feel free to e-mail us via www.lentillem.com for more information.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, Noon-12:45 PM, and Sundays, 4-7 p.m. on KGO Radio 810 AM.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at lentillem.com. Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, www.spreaker.com/user/lentillem and lentillem.com.
Email: lentillem@kenwoodpress.com

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