DEAR BENNY: Many people talk about how to get rid of a time-share unit. I went to a meeting where the broker wanted $4,000 to assist me. I left the meeting and did not pay anything. A nonprofit organization was having a fundraiser and auction, so I donated the time share to that organization. It sold for $800.
The bidder was happy; the nonprofit was also happy because it received the $800; and I received the tax deduction by way of a statement from the auction organization. –J.Z.
DEAR J.Z: You may have been lucky, but let me ask a question: What happens if the successful bidder decides not to make any payments to the time share — either the monthly (or quarterly) assessment or payments on the promissory note that you signed when you bought the timeshare?
Your bidder did not sign any legal documents with the lender/time-share developer, so he may not be liable should he be sued. But you signed the documents, and you can be sued.
Furthermore, many nonprofit groups are unwilling to take over a time share, even if it is only to try to auction it off.
So be careful and under no circumstances should you give anyone any money upfront. If you opt to hire one of these "time-share finders," enter into a written contact that states, "I will pay you when you can confirm that you can rid me of this time share."
DEAR BENNY: My partner and I believe we will make a large profit on the sale of our home. Can we each take the up-to-$250,000 exclusion of gain? –Ed
DEAR ED: Assuming you both own 50 percent of the house, if you meet the ownership and use tests, you both can claim up to the full $250,000 exclusion.
To qualify, you both must have owned — and used (i.e., lived in) — the house for two out of the five years before it is sold. Use does not mean continuous; you certainly can take a vacation. However, if your absence is too long, the IRS may challenge your exclusion.
It does not matter whether you both own the property 50-50 or in a different split. If, for example, you own 60 percent and your partner owns the balance, and each of you will have made a profit of more than $250,000 (and you both meet the ownership and use tests), you can both take the full $250,000 exclusion of gain.
DEAR BENNY: My dad wants to give his new wife a life estate so long as she resides in the house. Once she no longer resides there, then the property will go to my brother and me. Will this work? –Anne
DEAR ANNE: There have been a number of cases having difficulty with the term "reside" when the life tenant receives long-term medical treatment away from home, such as with a stroke or other medical event. I don’t know if it is possible to answer all the questions by drafting in advance, but it certainly would be a good idea to look at this question: If the life tenant has not changed to another "residence," is the tenant still presumed to be a "resident" in the original home?
You will have a lawyer draft the life estate language, so ask him the question.
One suggestion: If for any reason your stepmother is not in the house after a set number of days (probably six or nine months), she loses her life estate. But as a practical matter, she should be afforded ample time to move out.
DEAR BENNY: I am a retired attorney for a national title company. I know it is difficult to write a column that is read in many states, because so much real estate law is local and thus varies greatly from state to state.
However, in one of your columns, you seem to make a blanket statement that a title insurance company will not insure title to inherited property without probate. I assume that by "probate" you mean a court or other legal proceeding to transfer title to property of a decedent.
This is not true in Illinois where I did my title underwriting (and I believe in several other states, at least). During my career I insured many thousands of inherited properties where there was no probate.
The process we used was an "affidavit of heirship." This document would recite the facts from which we could determine who the heirs were of the deceased property owner(s). We would then insure title based upon deeds from the heirs.
There was a risk, of course, that affiants would be mistaken or lie on the affidavit. This risk is one of the many so-called "hidden risks," such as forged deeds, deeds by minors, etc., that a title insurance company assumes.
Of course, if the decedent(s) died testate, we would also require deeds from the potential legatees under the will (to the extent they are different from the heirs) in case the will would ever be probated and thus vest title in the legatees while retroactively divesting the title of the heirs. If the nonheir legatees refuse to sign deeds, then we would not insure title based on deeds from the heirs alone.
If some or all of the legatees are different than the heirs, and it is the legatees who are trying to sell without deeds from the nonlegatee heirs, then the will would have to be probated.
I fear that based on your column people might go through a probate proceeding (which may be expensive) when it is unnecessary to do so. Also, I strongly disagree with your statement later on in the column that "… you don’t have to go to a lawyer …"
First, even if one accepts the premise that probate is necessary, it is hard to see if how a layman can effectuate a probate without an attorney. Maybe it can be done in other states, but it certainly would be very difficult in Illinois
Second, when the time comes to sell the property, I hope you are not suggesting that such a sale be consummated without the seller(s) being represented by an attorney. There are so many technicalities involved in the sale of real estate that having an attorney is almost always a wise decision.
One of the duties of the seller’s attorney is to clear title with title insurance company. The title insurance company can guide the attorney on how to do this in the case of inherited property, thus very often avoiding probate and saving the client unnecessary costs.
I write purely from the prospective of an Illinois attorney, but I think that just underscores the necessity of having a knowledgeable local attorney involved in the process since the laws of the various states can be so different from one another. –Jack
DEAR JACK: Where I practice law, probate would be necessary, and as you suggest, it is difficult to write about real estate when there are major differences in the laws among the 50 states.
I hope readers will consult their own attorneys to determine what is required in their state. In fact, I usually end most of my columns with this advice: Consult your legal and financial advisers before you take any important steps or sign any important legal papers.
As for getting a lawyer for probate, again, in my opinion it really depends on the value of the estate. In many states, small probate is permitted; and in that case, one does not necessarily need an attorney.
But I completely agree with you that lawyers should be involved in any real estate transaction. While I don’t want to step on the toes of the real estate industry, because real estate agents and brokers usually are important in any transaction, too many times the agents tell their clients, "You don’t need a lawyer — we can do it all."
In many states, real estate agents are allowed to draft and prepare real estate contracts. To my knowledge, form contracts are used throughout the country and are, of course, tailored to local laws and regulations.
However, those form contracts are not and should not be "one form fits all." When I represent a buyer or a seller of residential real estate, there are many changes and additions that I want to include in a sales contract.
For example, when I am representing a buyer, I delete the paragraph that allows the seller to sue the buyer for damages should the buyer be in default of the contract. I want the buyer to lose only his/her earnest money deposit but not have to be sued for damages.
Of course, if I am representing a seller, I want to preserve all of the seller’s rights, including suing for specific performance or damages.
So, I agree with you and hope that my readers will follow our collective advice.
