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I need legal advice regarding father in law's estate- PLEASE
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<blockquote data-quote="keista" data-source="post: 449634" data-attributes="member: 11965"><p>I don't have personal experience, but will share what I do know.</p><p></p><p>#1 I'm assuming from the way you have written, that the HOUSE was in father in law's name as well as the mortgage. These are two totally separate things. The mortgage (MTG) itself is the least of the worries/complications in this scenario. As long as the bank keeps getting paid you can take your own sweet time dealing with that without too many problems. My personal example is that my house AND MTG were in mine and husband's name. When he left I made him quit claim his half of the house to me. This put the house in my name only, BUT the MTG was still in BOTH our names. He has since filed bankruptcy. He is still on the MTG but as long as the bank gets it's money, they really don't care about any of it. So, if the HOUSE is indeed in father in law's name we need to continue, otherwise if the HOUSE is actually in your names, then it is a non issue.</p><p></p><p>Now assuming the HOUSE is in father in law's name, and there is no will, yes, it all goes to mother in law. This is the purpose of probate. If she is willing and agreeable that the house truly belongs to you, probate is the time to present the information and transfer the property directly to you and husband instead of her. If mother in law is NOT agreeable and wants to claim the house, then probate is the time for you and husband to go before the judge and explain the arrangement, showing the proof that you have been paying the MTG, taxes, insurance, maintenance, improvements, etc. Either way it MUST get done through probate. This is the best avenue for the legal and tax implications. Any other large assets that are up for debate by anyone (creditors, family, business associates) have to be addressed at this time as well - that's the purpose of probate - for ppl to make their claims on the estate.</p><p></p><p>If nobody makes any claims on the estate, the whole estate goes to mother in law. Now to make thing 'easy' she could be saying (or husband saying) that the property will be transferred after it goes to mother in law. <strong>DO NOT DO THAT!!!!!!!!!!!!!!!!!</strong> Although it can be done, it carries HUGE tax ramifications. A person cannot just GIVE a house to another person. It becomes a taxable gift. The current amount that any one person can just 'gift' away in any calendar year is capped. I think it's at 13,000 right now. that means anything above that amount that is gifted is subject to a tax. So to you and husband she'd be able to gift tax free only 26K of the house and she'd have to pay taxes on the balance of the market value. You and husband would also have a $0 cost basis for the house which would result in possible additional taxes if you were ever to sell the home. Transferring title in probate will avoid all these gift tax issues. Also, she can totally change her mind, and then you will have no legal standing whatsoever.</p><p></p><p>If husband doesn't get it, you might have to have a consultation with an attorney if only to have the attorney tell your husband to listen to you and that you are doing the right thing for EVERYONE involved.</p></blockquote><p></p>
[QUOTE="keista, post: 449634, member: 11965"] I don't have personal experience, but will share what I do know. #1 I'm assuming from the way you have written, that the HOUSE was in father in law's name as well as the mortgage. These are two totally separate things. The mortgage (MTG) itself is the least of the worries/complications in this scenario. As long as the bank keeps getting paid you can take your own sweet time dealing with that without too many problems. My personal example is that my house AND MTG were in mine and husband's name. When he left I made him quit claim his half of the house to me. This put the house in my name only, BUT the MTG was still in BOTH our names. He has since filed bankruptcy. He is still on the MTG but as long as the bank gets it's money, they really don't care about any of it. So, if the HOUSE is indeed in father in law's name we need to continue, otherwise if the HOUSE is actually in your names, then it is a non issue. Now assuming the HOUSE is in father in law's name, and there is no will, yes, it all goes to mother in law. This is the purpose of probate. If she is willing and agreeable that the house truly belongs to you, probate is the time to present the information and transfer the property directly to you and husband instead of her. If mother in law is NOT agreeable and wants to claim the house, then probate is the time for you and husband to go before the judge and explain the arrangement, showing the proof that you have been paying the MTG, taxes, insurance, maintenance, improvements, etc. Either way it MUST get done through probate. This is the best avenue for the legal and tax implications. Any other large assets that are up for debate by anyone (creditors, family, business associates) have to be addressed at this time as well - that's the purpose of probate - for ppl to make their claims on the estate. If nobody makes any claims on the estate, the whole estate goes to mother in law. Now to make thing 'easy' she could be saying (or husband saying) that the property will be transferred after it goes to mother in law. [B]DO NOT DO THAT!!!!!!!!!!!!!!!!![/B] Although it can be done, it carries HUGE tax ramifications. A person cannot just GIVE a house to another person. It becomes a taxable gift. The current amount that any one person can just 'gift' away in any calendar year is capped. I think it's at 13,000 right now. that means anything above that amount that is gifted is subject to a tax. So to you and husband she'd be able to gift tax free only 26K of the house and she'd have to pay taxes on the balance of the market value. You and husband would also have a $0 cost basis for the house which would result in possible additional taxes if you were ever to sell the home. Transferring title in probate will avoid all these gift tax issues. Also, she can totally change her mind, and then you will have no legal standing whatsoever. If husband doesn't get it, you might have to have a consultation with an attorney if only to have the attorney tell your husband to listen to you and that you are doing the right thing for EVERYONE involved. [/QUOTE]
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