San Antonio Express-News
January 21, 2003

Statute of Frauds
-and-
Selling a Life Estate

copyright 2003, Paul Premack

There is a law called the "statute of frauds" that probably applies in your situation. It states, basically, that a verbal statement has little legality, if any, when it comes to the transfer of real property.

The "statute of frauds" is designed to keep real estate transactions above-board. By requiring agreements regarding land to be in writing, this law ensures the reliability and enforceability of land deals. Your stepfather may not have been aware of the law, and may have truly intended to allow all the stepchildren to have some interest in the house. But since he made the promise verbally, it was not legally enforceable.

Does that mean you have no other possible way to claim an interest in the house? It depends on certain facts that do not appear in your letter. For instance, the implication in your letter is that your stepfather is deceased. If so, his Last Will and Testament may have contained a provision giving you some rights in the home. (Or not. It may have simply left his interest in the home to his wife, in which case she is fully within her legal rights to have sold it to your brother).

If I am reading too much into your letter and your stepfather is still alive, then your mother could not have sold the home to your brother without your stepfather’s participation. Specifically, he would have signed the deed conveying the house to your brother – a written transaction that legally trumps any verbal promise he made to you. If he did not participate, then a solo conveyance by your mother is not legally adequate (it is homestead and a conveyance must be signed by both owners).

Dear Mr. Premack: My mother is 96 years old and has been in an assisted living facility for four years. She signed a life estate deed in 1973 putting my sister and me on her house. I also am Agent in her Power of Attorney. Her income (including rent for the house) no longer covers her expenses. Can I use the Power of Attorney to sell the house to pay for her care? Do I need my sister to agree to sell the house and if she does not agree to sell is there another way to force the issue? -- J.C. via Email

The life estate deed legally split ownership of the house into two parts: your mother’s lifetime benefit and the "remainder interest" owned by you and your sister. Thus, the rentals belong to your mother alone as part of the lifetime use of the house. However, selling the house affects all the owners and can only be done with the consent and participation of all the owners.

If your sister does agree to the sale, she could also gift her portion of the sales proceeds back to your mother. But if she does not agree to the sale, you cannot proceed unilaterally. Your only option then is to consider filing a partition lawsuit to have a Judge force the sale. No doubt the lawsuit would cost a lot, so enlisting her consent is by far the better route.

One final possibility: if your mother’s health warrants it, you could move her to a nursing home and apply for assistance from Medicaid. She must meet several standards to qualify for Medicaid, and owning a life estate in her house does not cause a problem. This is an option of last resort, but one you should consider.