Ask Liz Weston

Get smart with your money

Estate planning

Q&A: Providing for a disabled child

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Dear Liz: The letter about the disabled daughter was horrifying, but the father isn’t the only villain here. Surely the mother knew what kind of man she married. Shouldn’t she have made provisions for her daughter in her own estate plans?

Answer: Ideally, yes. No parent should assume a spouse will “do the right thing” for their kids. Even if the surviving spouse doesn’t marry the proverbial wicked stepparent who walks off with the whole estate, the survivor could be defrauded or compromised by dementia or other cognitive problems. Estate planning attorneys phrase it this way: You may trust your spouse, but do you trust your spouse’s next spouse?

Parents who have disabled children, or who hope to preserve a portion of their estate for their kids, should discuss their situation with a qualified estate planning attorney and make the appropriate provisions in their wills or living trusts.

Q&A: Disabled daughter left out of will

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Dear Liz: When my husband’s brother passed away last year, he left a sizable estate to his second wife of five years (the mother of his children died 10 years ago). He left nothing to his two adult sons or young grandchildren. But the most troubling part was that he left no provision for his 29-year-old daughter who has disabilities and was still living in her childhood home.

Within months, the wife demanded that this young woman leave the property. The stepmother’s comment was, “Not my child, not my problem.”

We helped our niece move to our home and apply for Social Security disability and Medicare. She now is able to see doctors about her condition. She couldn’t remember the last time she had seen a doctor, which was probably in her teens when her mother was still alive.

A wheelchair has been ordered that will enable her to go out. She has a bank account and had to be taught how to use a credit card at the store and ATM. She started classes in early September to get her high school diploma. Her brothers are stunned that she is able to do all of these things.

I am thrilled for her and the progress she’s making, but I am furious with my late brother-in-law and the attorneys who completed his will. The attorneys were aware of this young woman and her needs, yet did not counsel her father to make provisions for her.

Answer: Your fury is understandable, but it’s not a given your brother-in-law got bad advice. It could well be that the attorneys counseled him about his options for caring for his special-needs daughter, and he simply ignored them. Given his long history of ignoring his daughter and her needs, that wouldn’t be surprising.

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.