Avoid tax bite saving brother's house

Gift of half-ownership has consequences

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Jul. 11, 2011

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Can you please advise me as to the best way to sell this property? How do I find out what it is worth? Is it possible that the cemetery director would sell the property for me? Are there any charges for this sale that I may need to know about? --Maggie

DEAR MAGGIE: I would first find out if the cemetery is still operational. Do a quick website search and confirm that. If the cemetery is operational, I would contact the manager of the cemetery and ask him/her your question. I have absolutely no idea what the lots are worth, but again, their website may give you guidance.

Alternatively, you may want to contact a local church in this Pennsylvania town and see if they are interested in taking the lots off your hand. You can donate the lots to the church and take a charitable contribution on your next tax return.

But you will need to know what those lots are worth, and you should consult a tax adviser to give you specific advice.

DEAR BENNY: My daughter wants to buy me a home. I know I am very lucky. However, my understanding is that she will not be able to claim the homestead exemption in my state (which is $75,000.) She and her husband live in their home in which they claim their homestead exemption. I am not financially dependent on them; I just cannot afford to purchase a home. I can take care of the miscellaneous home expenses. As a non-owner of the home, how can the homestead exemption be applicable? --Patty

DEAR PATTY: This has to be a general response, as I am not familiar with the real estate laws in your state. But here is one suggestion: Talk to your local taxing authorities that administer the homestead exemption. If, for example, you have a partial ownership of the property, will you be able to take advantage of the homestead exemption? In other words, what is the minimum percentage of ownership required to get the exemption?

Then, depending on the answer, see if your daughter's lender will allow you to be on title with her, in the percentage necessary for the exemption. For example, if 25 percent will meet the requirements, can you be on title with your daughter -- as tenants in common -- 75 percent to her and 25 percent to you?

Note that I suggested that title be held as tenants in common. While I would prefer that title be held as joint tenants, to my knowledge, very few U.S. states allow different percentages when title is held as joint tenants with rights of survivorship.

Why do I prefer the joint-tenant arrangement? If title is held as tenants in common, on your death your ownership interest does not automatically transfer to your daughter. It may have to be probated, and your last will and testament (which you should have in any event) will control who will get your share. With joint tenants with rights of survivorship, on your death, title will automatically transfer to the surviving joint tenant, and no probate is required.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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