Los Angeles Trust and Probate Litigation Attorney, SirkinLaw

Did you just inherit real property from an estate or trust?

If you have inherited real property you need to read this article:

When you inherit real property, you are likely to have gone through a grieving period and been burdened with the task of managing real estate all in one year.    If you've been a professional property owner, you can probably handle this with relative ease.   Now if you have your own primary residence and don't intend to move into the property, you must get used to many things as a home owner.

Most people are so busy that property management becomes a chore and they soon opt to sell the property rather than to repair and rent it.

“A lot of people have enough to do just to maintain their own property and now all of a sudden they have another piece of property they have to deal with — that’s a little difficult," says Carl Izzo, Managing Director at Fiduciary Real Estate Advisors in Boston.

Why do you need legal advice when receiving real property as an inheritance?  Depending on where the property is and where you live, the law varies in taxation of the gain and in the reassessment of the property taxes.   For example, in California, if you are a child and you inherited real property from your parents or grand parents, you should explore whether or not Prop. 13 low taxes will apply to you and be sure to complete the proper forms, in a timely fashion to preserve it.  For that, you should obtain legal advice from counsel to guide you to be sure you don't lose the prop. 13 benefits.

If you are one of several siblings who have inherited real property, you must know that the grieving process includes an anger stage.   By experience, very little gets done in this period.  In fact, most fights in estates occur during this period.   

The decision of whether to keep the property, sell the property, rent the property should be put to a vote, or left to an arbitrator if no agreement can be reached after having several family discussions to see if an agreement can be reached.   

There are many companies, like Advanced Inheritance (Woodland Hills, CA), which lend to heirs to enable heirs to buy-out each other.   

To have a successful family discussion, ask each heir to write down several things:

1.   What do you consider to be a fair price for the property?

2.   What do you consider to be a fair rental value for the property?

3.    Are you willing to contribute to the expenses and property taxes, and if yes, how much?

4.    Are you willing to hold-on to the property long-term (over one year)?

5.    What is the longest term you are willing to hold on to the property?

6.     How would you rate the condition of the property on a scale of 1-10 (10 being best)?

7.     How much in repairs do you think it would cost to bring the property to market value?

If you are the successor trustee, or executor, you must keep accurate receipts for all expenses of the real property before it is distributed.   Once the property is distributed, if there are multiple owners, one of the owners should agree to keep the records and print a monthly report of the property expenses for the remaining owners.

So that there are  no surprises, you should consult an accountant to advise you of the potential State of California withholdings from sales if you are selling the property.   Determine quickly if the decedent had unpaid Federal, State or local taxes and discuss this with the heirs if those have become liens against the property.

If there are homeowners association fees, be sure to pay them on time, so that they do not become liens against the property.    Of great importance is the upkeep of home owner's insurance.  Be sure it does not lapse and immediately call the insurance agent to get a rider after death.   Some companies terminate the policy after death, and you certainly don't want to be left without it.

Regardless of whether or not you intend to sell the property, you must obtain a Certified Appraisal to establish your basis.   Stepped-up basis in most cases is likely help save taxes meaning it would be valued as of the date of the death for purposes of determining capital gains.  While this law still exists, you should always consult with your tax adviser and your attorney to determine the rules at the time of sale.   

Here is a list of professionals you will need when you are about to inherit real property:

1.    Trust and Estate Lawyer.

2.     Real Estate Broker.

3.     Accountant.

4.     Appraiser.

5.     Home owner's Insurance agent.

Mina N. Sirkin is a Family Wealth Lawyer and a TV Legal Expert in Los Angeles, California.   Ms. Sirkin is Certified as a Specialist attorney in Estate Planning, Probate and Trust Law by the Board of Legal Specialization of the State Bar of California.    [email protected].  http://www.SirkinLaw.com.

Copyright 2008 Mina N. Sirkin.  Al rights reserved.

Top reasons why you should avoid joint tenancies with your children

By: Mina N. Sirkin, Esq.

Many clients come into our office wanting to put their children on the title of their home so their real estate avoids probate. This article will address the problems of joint tenancy with your children.

As the economy takes a down turn, we face an even more litigious society than then last two decades. It is now more important to protect oneself against possible lawsuits.

The typical life problems of you children can become yours if you are joint tenants with your children. For example, if your child is in the process of divorce, that child's spouse may claim that half of your home is an asset that is within the court's jurisdiction for marital settlement procedures.  Although your child's spouse may generally lose such an argument, this will tie up your home until your child's divorce is final.

If your child is involved in an auto accident without insurance or with inadequate insurance, a judgment against your child's name can result in your involvement. This in turn could result in a judgment lien imposed on your child's half of "your" home.

Creditors of your child will also be able to enforce a judgment lien against your house in order to satisfy your child's debts. This could force a sale of your home against your wishes. Your child's largest creditor(s) may be the IRS or the Franchise Tax Board. If your child has not paid income taxes or has incurred other tax liability, those tax entities may attach a tax lien against any real property in your child's name. Also, a forced sale by your child's creditors may create capital gains and gift tax issues for you.

If your child files bankruptcy to avoid his or her creditors, he or she will have to declare part of your home as his or her assets, and creditors will ask the court permission to sell his or her share of your home to satisfy any debts. This will force a sale of your home and will tie up your home in the courts against your wishes.

Furthermore, once you have put your son or your daughter on title, if you want to sell or refinance your home, you MUST obtain your son or daughter's permission to sell the home. If he or she refuses, you will NOT be able to sell the home without resorting to litigation.

How can you solve these problems? By putting your property in trust, your child will avoid probate, and you will not be affected by your child's financial problems, your child's law suits or divorce proceedings.

Mina N. Sirkin is a Board Certified Specialist attorney in Estate Planning, Probate and Trust Law by the Board of Legal Specialization of the State Bar of California. Ms. Sirkin practices in Los Angeles County, California. [email protected]. http://www.SirkinLaw.com.

2008 Copyright Mina N. Sirkin.  All rights reserved.