Montana Property Law


Mark Mackin - Attorney at Law               Office Phone  406-227-5237
Mobile Phone 406-422-8652

Elder Property Recovery and Litigation


As we age, characteristics like generosity, friendliness and helpfulness  that made us valued members of the community can make us vulnerable to those who would defraud us of our property and assets.  Occasionally, those are people we love and trust.  More often, those we love and trust try to protect us from the problems caused by our failing memory and mobility.   A trusted attorney can properly advise you in this challenging stage of life.

Stealing a house is easier than you think.  Someone comes to talk to you about reverse mortgages and it sounds like the answer to your prayers. IF YOU DID NOT CONTACT THE AGENT FIRST, ALARM BELLS SHOULD BE GOING OFF.  A trusted family member, friend, or lawyer should look over the papers before you sign.  One signature and your house is gone.  Recovery of the property or real estate could be costly, time consuming and exhausting.

Elders can be exploited by those close to them: caregivers, landscapers, or alleged friends – anyone having knowledge of assets and vulnerabilities.

SHOULD EXPLOITATION OCCUR, REMEDIES ARE AVAILABLE TO STOP SUCH THEFT IF ACTION IS TAKEN QUICKLY.

Here’s a scenario on how the theft can happen:

Granny lives alone in a house she owns. She makes all kinds of lists to remind her of things to do but often forgets to look at them. Her oldest grandson has drug and alcohol problems but is sober now.

The grandson has lost his job and needs a temporary place to stay.  The family is happy when he decides to stay with Granny and watch over her until he gets back on his feet.  She is happy because her first grandchild is near and she can help him.

Things go well for Granny and she feels grateful.  A year goes by and he still hasn't landed a job, his self-esteem plummets, and he's back on drugs. Granny notices the changes but doesn't remember to mention it when her daughter calls. 

 The grandson decides to take his inheritance early.  He convinces Granny that she needs to transfer title of the home into his name, in order to avoid probate and tax problems in the future. In return, he will take care of her.  Confused, but not wanting to upset anyone, she signs a deed that transfers title.  Now they will be together until she dies.  He deserves the house for taking care of her, doesn't he?

The grandson takes out a $100,000 loan, using the house as collateral. If the grandson fails to make the monthly mortgage payments, the house will be foreclosed upon and Granny will be out in the street.

The next time Granny talks to her daughter, she tells her about the 'happy solution' her grandson found for her declining years. Can the daughter do anything?  Has a crime occurred?

The daughter must act immediately.  A civil action can be filed against her nephew and then a notice of pending real property claim can be recorded in the county clerk and recorder’s office. Then the  world is on notice that a dispute exists as to the true owner of the real property.  The nephew will not be able  to take out another loan or sell the house.  Instances of undue influence are common and can be reversed.

THE MOST IMPORTANT THING IS FOR SOMEONE TO LEARN OF THE PROBLEM AND REPORT IT IMMEDIATELY.  Family communication about finances is important.  If Granny had forgotten to mention the transfer, no one would have known until they noticed the grandson's drug use and extravagances.  Even then, they may not connect it to ownership of the house.  Sad to say, a foreclosure notice might be how the family learns the truth.  Money spent on drugs, gambling, etc. may never be recovered.  Early action is critical to preserving the asset.

Yes, financial exploitation of the elderly is a crime.  Contact the Department of Public Health and Human Services program to prevent elder abuse. 

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