Surprising short-sale impacts on credit

The higher the credit score, the longer it may take to fully recover

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Add Comment Add Comment | Comments: 1 | Posted Nov. 30, 2011

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DEAR CLINT: Many thanks for the helpful suggestions. As my readers can see, there are many creative ways to resolve complex issues, and it always pays to discuss your specific issues with your own tax and legal advisers.

People like Clint and me can provide only general advice and information to the general public; attorneys and tax advisers can review your specific situation and tailor their advice based on that information.

DEAR BENNY: Four years ago, at our lawyer's recommendation, he drew up an irrevocable trust for us. Our home would then be excluded from our assets if we were forced into a nursing home. Apparently, that's based on New York state law. However, after reading your recent column about having one's daughter inherit the parent's home, we feel that was a mistake.

Do we have any recourse? If so, what should we do? We are 79 and 87 and would appreciate your advice on how to proceed. Our home was in both our names, but now it is in our two sons' names. --Marie

DEAR MARIE: It appears that the lawyers you consulted were advising you how to keep your home from being counted as an asset for purposes of Medicaid qualification. These rules are state-specific and can be complicated. I cannot comment on this because I do not know New York law.

Generally, by putting a house in an irrevocable trust, this puts the asset out of your control and out of your list of assets. There is a five-year look-back rule that must be surpassed before the property is considered not "countable."

It should be noted that if any reader is contemplating this approach, it is mandatory to seek counsel with an experienced "elder law" attorney.

Finally, I am not sure that your attorney's advice was wrong. I suggest you talk to another New York lawyer. Generally, irrevocable transfers are just that, but in some circumstances where the transfer is to a trust, the trust may be able to be terminated with consent of all parties.

DEAR BENNY: My husband passed away recently. I need to know what to do and where to go to have his name taken off the title to our house. It's in both our names and he left a will stating everything goes to me. Can I do this myself, as money is pretty short now? I would very much appreciate what you can tell me on this matter. --Marcie

DEAR MARCIE: My condolences on your loss. The very first thing you have to determine is how you and your husband held title to your house. If it was as "tenants by the entirety," or joint tenants with rights of survivorship, that means that you and your husband owned the property jointly and that when one of you died, the entire property was then owned by the survivor. No probate is required. Title transfers "by operation of law."

While you can take steps to remove his name, since you own the entire property, it really does not make a difference whether you do that or not. If and when you go to sell the house, all you will need is a certified true copy of the death certificate.

If, on the other hand, the property was titled as "tenants in common," that means that you owned a percentage of the house (usually 50-50) and your husband owned a percentage. In this case, you will have to probate your husband's estate, although state laws differ on how difficult this will be.

I know you don't want to spend a lot of money. You may be able to determine how title was held by going to the local recorder of deeds office. In many jurisdictions, this information can actually be found online. But it would pay to buy an hour or two of an attorney's time to (1) check the status of title and (2) give you advice on your next steps.

You may also want to consult a financial adviser to assist you now that you are alone. You want to make sure that any and all assets are accounted for, including such things as Social Security payments, pension plans, annuities and life insurance policies.

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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1. Credit Rating Scores said... on Mar 28, 2012 at 09:05AM

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