DEAR BENNY: I am recently divorced. We had two houses. In the divorce, I got one and he got one. We both signed quitclaim deeds to each other. However, I needed to refinance mine to pay off the bills I accumulated just to get my house back into livable shape. (It was a rental while we were married.) Both houses have mortgage loans: Mine carries a rate of 6 percent and his is at 5.75 percent interest. Needless to say, there is no incentive for him to refinance that favorable loan rate.
My ex is not the healthiest man, and my name is still on his loan. I told my lawyer several times through the divorce process that I wanted it stated in the divorce agreement that we both have to refinance. It did not happen.
Even though a quitclaim was signed, what is my exposure if something happens to my ex, considering my name is still on the loan? –Becky
DEAR BECKY: Why did you sign the divorce papers when they did not require your ex to refinance so that your name will get off of that loan? You might want to explore whether your lawyer did not properly represent you — although there may be legitimate reasons why that did not happen.
Should your ex die, his estate will most likely have to be probated. The most likely outcome will be either that the heirs to the property will assume the mortgage and keep the property, or will arrange to have it sold. Under either scenario, you are protected.
However, if your ex stops making the monthly mortgage payments, and goes into default, since your name is still on the loan, the lender has the right to either foreclose on the property — which will be a blemish on your credit rating — or sue you for the balance of the note. I assume that when you were married and borrowed the money, you signed a promissory note, which indicated that you were both — jointly and severally — obligated to repay the loan,.
You should immediately contact the other lender and advise them that you no longer own the property. Make sure that you provide them with your current mailing address, so that any notices of default will go to you as well as to your ex. Should that happen, you should immediately retain a lawyer (a different one) who can take all appropriate steps to protect you, including filing suit against your ex.
You have a problem that at the present time can be resolved only if your husband refinances.
DEAR BENNY: I am a recently divorced woman. After many years of marriage in the same residence, I was decreed full ownership of the family home. However, I had to secure a substantial loan on the home to give to my ex-husband in order for him to move out. Because of my financial situation, I could not secure the loan without keeping him on the loan and on the deed. However, in the divorce settlement there is a quitclaim deed stating that I have five years to refinance the loan and get my ex-husband’s name off the loan and off the house deed.
I will not quality for a loan myself. However, I have a son, a recent college graduate, who has an excellent job and salary, and who is living downstairs and helping to pay the mortgage.
Should I go ahead and record the quitclaim deed? My name has been changed. Would the mortgage company be alerted and would they then require the loan to be paid in full? Would I then be forced to sell sooner than the five years? Also, I know my ex-husband’s name would still be on the loan. They may make me refinance with my name alone (I would not qualify), but maybe with my son’s credit I could qualify, making him part owner with his name on the deed. Could you please clarify the most prudent steps for me to take to keep my home and free myself of the quitclaim deed? –Amy
DEAR AMY: I bunched your question with the one above, since the issues are similar. First, federal law does not permit the lender to call your loan just because you changed your name or add your son to title.
I suggest the following: Assuming that your son qualifies for a loan, have him buy half of the house. You then will both apply for a new loan, which if approved will pay off the existing loan, and your ex will be out of the picture.
DEAR BENNY: My husband and I own a rental property that is paid off. We have been talking about separating, and my husband has said that I can keep the house. How can I get his name off the house and put my name on, or should we just sell it? I would like to continue to rent the property for a while longer because my daughter lives in it. –Virda
DEAR VIRDA: I assume that your daughter is paying you rent. If you think that the property will continue to be a good investment, it’s quite easy to have the property put exclusively into your name. Your husband just has to prepare a deed — usually called a "quitclaim deed" — conveying the property to you. In some states, it may be necessary for the two of you to convey back to you as sole owner.
If you are still married, then (depending on state law) you may not have to pay any recordation or transfer tax. The filing fee should be nominal.
But that’s the easy part. You also have to explore the tax consequences of such a transfer. According to the tax code (section 1041 to be exact), when your husband transfers the house to you there is no taxable gain. Thus, your husband will not have to pay any capital gains tax. However, you should consult your tax advisors to determine if this will trigger any gift-tax consequences.
When the house is transferred to you, (unless your husband is a nonresident alien) your husband’s tax basis becomes yours. What does this mean? Let’s say you initially paid $100,000 for the house. Each of your bases for tax purposes was $50,000. Now, when you become the sole owner of the property, your tax basis will be the full $100,000 (plus any improvements that have been made to the property over the years).
So please explore all legal and tax implications before making the transfer.
DEAR BENNY: My question is about the two-year residence requirement for tax exemption when selling your main residence. We owned the bare land for years and built a home on it in 2006. We actually moved out of our rental and into the home on Nov. 6, 2006, and by Dec. 31 the home was 99 percent complete. However, the final approval wasn’t signed off until March 2007 when the required pool cover was installed. When I read the law, it states "primary residence date," but would that be the date we actually moved in or from date of final sign off by the building department? –Carol
DEAR CAROL: Yours is an interesting question that will have lawyers and probably the IRS issuing dozens of opinions, many of which will be contradictory.
I don’t know the answer. The law says that you have to have owned and lived in the house for two out of the five years before the property is sold. I would argue that the target date would be when you actually moved into the house, namely November 2006. But if you can hold off until March 2009 — which will be two years after you received the final clear-off from the county — that would be the safest course to take.
DEAR BENNY: I live in Florida and am executor of the will of a friend in New York City who owned a one-half interest in a condo in Ocean City, Md. She wanted to give that interest to my nephew upon her death. How do I go about transferring her interest to him? Do I need an attorney? –Ronald
DEAR RONALD: Even if you went through probate in New York, since the deceased owned property in Maryland, you will have to open up what is known as "ancillary" or "foreign" probate in Maryland. It’s not too complex, although you may want to retain a local attorney in Ocean City to assist you.
Once the Maryland court probate proceeding has been established, you should have no problem issuing a personal representative (executor) deed to your nephew. To avoid any issues of conflict of interest, I assume that the will specifically states that the property interest is to go to your nephew.
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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