Ask Liz Weston

Get smart with your money

Estate planning

Q&A: Here’s why two siblings who inherited mom’s house should prepare for an ugly family feud

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Dear Liz: My mother left her house to my brother and me. He wants to use it as a rental property. I have no interest in being a landlord or in ownership. He doesn’t want to buy me out, so I’d like to sell my half interest. What are the tax issues I need to prepare for, and does my brother need to sign any documents?

Answer: You should first prepare for an ugly family feud. If the property hasn’t been distributed yet, you’ll face a probate or trust contest over the house, says Jennifer Sawday, an estate planning attorney in Long Beach. If you’ve already inherited the home, you would need to go to court to file a real estate partition action. Either way, a court action typically forces a sale or arranges for your brother to buy you out before dividing the proceeds — minus all the attorneys’ fees, of course. (This is not a do-it-yourself situation, so you’ll both need to hire lawyers.)

That may be the best of bad options if your brother won’t see reason. Being a landlord involves considerable hassle and liability. You shouldn’t be forced into such a business — or any business — with a family member.

You can use the threat of legal action as a bargaining chip, since you both will net a lot less from your inheritance once the court gets involved. It makes much more sense for your brother to agree to a sale or get a mortgage to buy you out. Let’s hope he comes to that conclusion as soon as possible.

Q&A: How to ensure that assets end up with an heir — not that person’s spouse

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Dear Liz: What would be the ownership status of assets covered in our will and our retirement accounts when our heirs and beneficiaries receive them? In the case of married heirs, do the asset ownership laws of their state of residence dictate whether inheritance proceeds get held individually or jointly? In addition to having a candid conversation with our kids, we are debating the need for and risk associated with a revocable living trust to provide some assurance that our wishes be honored for our direct descendants to receive and manage any proceeds.

Answer: Inherited assets can be kept as separate property, even in community property states where assets acquired during marriage are typically considered jointly owned. Keeping property separate requires some vigilance, however. If an inheritance is deposited in a joint account, or joint funds are used to improve a separately owned house, those assets could become marital property.

Even if your heirs are scrupulous about keeping property separate, their spouses may ultimately inherit should your heirs die first. If those spouses remarry, the assets could wind up with another family, rather than with your grandkids.

If you want your assets to ultimately get to your grandchildren, there are a few ways to do that, such as bequeathing assets directly to them or through generation-skipping trusts. You can use either a will or a revocable living trust.

You’d be smart to talk to an experienced estate planning attorney about what you want and the best way to achieve those ends.

Q&A: Wife should get her name on deed

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Dear Liz: My daughter, who is a stay-at-home mother of two, recently bought a home with her husband. They have been married seven years. I recently discovered that her name isn’t on the deed to the home. I don’t know why, but it doesn’t sound good to me. What are her potential issues?

Answer: The issues depend on where she lives. Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

If your daughter lives in one of those, assets acquired during marriage, including a home, are generally considered community property owned equally by both spouses. Her husband, ideally, should place her on title via a deed to reflect true ownership or place it in a trust to provide for his wife. However, if her husband should die without bequeathing her the property, the home could go to probate proceeding, and the wife would have to provide proof that it was community property to receive all of it, says estate planning attorney Jennifer Sawday of Long Beach.

In other states, different rules apply. Typically assets held in one person’s name are that person’s property. If the husband has a will, he could leave the house to your daughter — or not. Should he die without a will, she could wind up sharing ownership of the house with others, such as children from a previous marriage.

Q&A: Giving stock to your children

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Dear Liz: We plan to give our children some stock that we have had for several years. What is the tax consequence when they sell it? Is it the difference from the value when we gave it to them till they sell it, or the difference from the value when we purchased it?

Answer: If the stock is worth more the day you give it to them than it was worth when you bought it, you’ll be giving them your tax basis too.

Let’s imagine you bought the stock for $10 per share.

Say it’s worth $18 per share when you gift it. If they sell for $25, their capital gain would be $15 ($25 sale price minus your $10 basis). They will qualify for long-term capital gains rates since you’ve held the stock for more than a year.

If on the day you give the stock, it’s worth less than what you paid for it, then different rules apply. Let’s say the stock’s value has fallen to $5 per share when you gift it.

If your children later sell for more than your original basis of $10, then $10 is their basis. So if they sell for $12, their capital gain is $2.

If they sell it for less than $5 (the market value when you gave it), that $5 valuation becomes their basis. If they sell for $4, then, their capital loss would be $1 per share ($4 sale price minus $5 basis). The silver lining: Capital losses can be used to offset income and reduce taxes.

Finally, if they sell for an amount between the value at the date of the gift and your basis — so between $5 and $10 in our example — there will be no gain or loss to report.

If, however, you wait and bequeath the stock to them at your death, the shares would get a new tax basis at that point. If the stock is worth more than what you paid, your kids get that new, higher basis. So if it’s worth $25 on the day you die and they sell for $25, no capital gains taxes are owed. If it’s worth $5 when you die, though, the capital loss essentially evaporates. Your kids can’t use it to offset other income.

Q&A: Their kids are spendthrifts. How do parents protect them with a trust?

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Dear Liz: My wife (71) and I (68) have been diligent savers our entire lives. We have accumulated IRA assets of approximately $2 million along with a house and other assets. Our total estate is under $10 million. We have two adult children in their 20s who did not inherit the saving gene. My question is: Does a trust exist that would maintain the IRA’s tax-deferred status, make required minimum distributions to our kids and include appropriate spendthrift provisions? Also, would the distributions be based on our life expectancies or on theirs?

Answer: Yes, you can create a spendthrift trust and name it as the beneficiary of your IRAs. Your children could be named beneficiaries of the trust. Required minimum distributions for inherited IRAs would be based on the elder child’s life expectancy. Your children would not be able to “invade” or tap the principal.

A spendthrift trust would not only prevent your kids from blowing through any money left in the IRAs. It also would prevent creditors from getting the money in case of bankruptcy. In many states, inherited IRAs are vulnerable to creditor claims.

Here’s the thing, though: This is a question you should be asking your estate planning attorney. If you don’t have one, you need to get one. People with small, simple estates may be able to get away with do-it-yourself planning, but yours is neither small nor simple. Trying to save money by using software or forms just isn’t a good idea. Whatever money you save may be wasted when your estate plan goes awry in ways you didn’t foresee, because you’re not an estate planning expert.

Trusts that name IRAs as beneficiaries, for example, must have special language to accomplish what you want, said Jennifer Sawday, an estate planning attorney in Long Beach. Without the right language, the IRA custodian might liquidate the IRA instead. That would trigger the taxes and lump sum payouts you’re trying to avoid.

Q&A: Procrastination can mean estate-planning disaster

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Dear Liz: My husband and I own all our assets as joint tenants. Because we have no children, we did not want to rush into making a will. But for the past few years, my husband’s older sister has been pressuring him to write a will benefiting her 60-year-old daughter.

His sister has gone so far as to ask my husband to send her a notarized list of all our assets, including bank accounts. He’s declined but she does not take “no” for an answer. He no longer communicates with her. It is our wish to benefit only the organizations and institutions that we already support. Although family members and relatives will not be named in the will, I wonder if his sister or anyone else can still try to claim an inheritance.

Answer: If you don’t stop procrastinating, everything you own may be inherited by that pushy sister-in-law. So get a move on.

Your jointly owned assets should pass to the other spouse when one of you dies, but when the survivor dies the property would be distributed according to your state’s laws if you don’t have a will or other estate plan. The laws of intestate succession typically put any children first in line, followed by parents. If you don’t have kids and your parents are dead, then siblings usually inherit.

People who would have inherited in the absence of a will typically have the “standing” or legal ability to challenge a will. Given your sister-in-law’s extreme sense of entitlement, you should count on her doing so. You should enlist an experienced attorney to help set up a will that can survive such a challenge.