DEAR BOB: About a year after mom died, dad married a much younger woman who was 34 at the time (he was 62). Three years later, dad died of a heart attack. My sister and I never liked the second wife although we “tolerated” her and were cordial to her. Under dad’s will, he gave his second wife a “life estate” in his house. Upon her death or permanently moving out, the house goes to my sister and me. The second wife has remarried and moved her new husband into the house with her. It has only been four years since dad’s death, but the house is getting badly run down. The yard is a mess. The property taxes were unpaid until I checked up and told the life tenant she must pay the taxes or forfeit her life estate (there is no mortgage to pay). My sister and I are concerned the house will be a run-down wreck by the time she dies (she’s 41 now). Is there anything we can do about this situation? – Craig C.
DEAR CRAIG: Yes. One alternative is to buy out the life tenant’s interest in the house. Life estates usually are not worth much. The reason is when the life tenant dies, the life estate ends. It has no value, except to remainder persons like you and your sister.
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But the life tenant might see things differently. She has virtually “free housing” and that’s worth a lot. However, if you offer her $10,000 (or whatever you want to offer) for her to sign a quit claim deed terminating her life estate, she might accept.
Even if she declines your offer, tell her your offer remains open. The day may come when she needs cash and phones you to accept your offer. Every time you talk with her, ask what it would take to buy out her life estate.
Another alternative, if she fails to pay the property taxes or properly maintain the house, is to bring a legal action to terminate the life estate for “waste.” But waste is easy to cure, such as by fixing up the house and paying the property taxes. Judges are usually reluctant to terminate life estates for waste. For details, please consult a local real estate attorney.
WHEN DOES A LIVING TRUST BECOME IRREVOCABLE?
DEAR BOB: I finally got my mother to put all her assets in a living trust. But my question involves my living trust if I leave my home to my minor children. Suppose I die while they are still below age 18. Does the trust become irrevocable when I die? What if the children decide to sell the house. Can they take advantage of the Internal Revenue Code 121 $250,000 principal residence sale tax exemption? – Mike P.
DEAR MIKE: Your revocable living trust obviously becomes irrevocable when you die. If you foolishly leave your house to minor children in your living trust, and you die while they are still minors, in most states they can accept title to the house but they can’t sell it without court approval (or until after they become 18).
However, you can specify in your living trust that your children can receive title only after they become 18 (or 21, or 30, or whatever age you want). Meanwhile, title remains in your living trust, managed by your successor trustee.
To qualify for the Internal Revenue Code 121 principal residence sale tax exemption of $250,000, the child would have to own and occupy the principal residence at least 24 of the 60 months before its sale. Of course, please be aware they will receive a new stepped-up basis to market value on the date of your death.
More details are in my brand new special report “24 Key Questions Answered: Living Trust Secrets Reveal How to Avoid Probate Costs and Delays” available for $5 from Robert Bruss, 251 Park Road, Burlingame, CA 94010 or by credit card at 1-800-736-1736 or instant Internet PDF delivery at www.bobbruss.com.
CHECK WITH LOCAL TAX ASSESSOR ABOUT REASSESSMENT
DEAR BOB: Will adding our adult daughter to a home title cause a property tax reassessment? She is an unmarried school teacher with a low income and little hope of earning much more in the future. We are becoming concerned about her not being able to afford to buy a home if the property taxes go up – Jen F.
DEAR JEN: From your letter, I am unclear if you are referring to the residence where you reside, or possibly to a rental house in another state. Tax reassessment policies vary by state law and even county or city property tax rules.
The best way to get a written authoritative answer in the local jurisdiction where the property is located is to write a short letter to the tax assessor where the property is located asking if adding an adult child to your title will cause a property tax reassessment. In most situations, it will not cause reassessment.
However, I just read an article about the property tax situation in Florida where parents have added their children to their homestead titles, thus triggering reassessment in some counties but not in other counties.
HOME BUILDER NOT LIABLE FOR SALESMAN’S ORAL STATEMENTS
DEAR BOB: We purchased a brand new house in April 2005. The house was then under construction. The builder’s salesman assured us all five adjoining houses and lots would have the same features. We closed our purchase on August 28. We were surprised to discover three adjoining houses got landscaping, but our house didn’t. When we complained, the sales agent said the builder decided to landscape those houses. We feel cheated. Do we have any recourse? – Donna Z.
DEAR DONNA: In real estate, everything must be in writing to be legally binding under the Statute of Frauds. Oral statements by the builder’s salesman are unenforceable unless included in a written agreement signed by the builder’s authorized representative.
There is a very good reason real estate agreements must be in writing to be enforceable. Without written proof, it becomes an argument of who said what. It looks like you have no legal recourse against the builder, but please consult a local real estate attorney for more details.
WHY REFINANCING MOBILE HOME IS ALMOST IMPOSSIBLE
DEAR BOB: About 10 years ago I bought a mobile home and have been paying the bank 10 percent interest on my loan. I want to refinance to lower my interest rate and payments. But the bank will only loan me what I owe and they will lower my interest rate to just 8 percent. I thought home loans were around 6 percent or less. Also, shouldn’t I be able to borrow what I originally owed? – Terry W.
DEAR TERRY: Unless you own a manufactured home on a foundation located on a lot you own, banks and other lenders are not eager to refinance loans on older mobile homes.
There is a very good reason. Mobile homes usually depreciate in value, just as your car depreciates. A few limited exceptions apply, such as mobile homes in rent control or highly desirable mobile home parks.
Refinancing older mobile homes is usually difficult or sometimes impossible. If readers inform me of a major mobile home lender willing to refinance older “coaches” like yours at reasonable interest rates, I will be glad to print that information so keep reading each week.
DON’T BE MISLED BY YOUR TENANTS
DEAR BOB: In my leases with my tenants, I have a $10 per day late fee, after a five-day grace period. But my tenants tell me there is a maximum $50 late charge per month. My attorney says there is no such law. I told him I would check with you – Gust V.
DEAR GUST: Landlord-tenant laws vary by state. Don’t be misled by your tenants. Ask them for the state law citation. If your attorney can’t find any such statute, it probably doesn’t exist.
However, your real problem is collecting late fees from late paying tenants. In eviction proceedings, many judges are reluctant to include late fees in addition to unpaid rent judgments awarded to landlords.
One alternative is to deduct the late fee from the tenant’s security deposit, but that could result in the tenant suing you in local small claims or housing court for refund of the late fees deducted from their security deposits. For more details, please consult your attorney.
The new Robert Bruss special report “The 10 Key Questions Condo Sellers Hope Their Buyers Don’t Ask” is available for $5 from Robert Bruss, 251 Park Road, Burlingame, CA 94010 or by credit card at 1-800-736-1736 or instant Internet PDF delivery at www.bobbruss.com. Questions for this column are welcome at either address.
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