Signing over property

Senator · 05-15-2010, 07:24 PM

Guess I will talk to my lawyer next week, but thought some smart guys on here might know a quick answer.

My dad is sick and in ICU now. He wants to sign over our cabin in Cloudcroft, New Mexico to myself, brother, and sister.

What are the steps to sign over property, as you guys know them?

Thanks.

Drake · 05-15-2010, 07:48 PM

No advice, just wanted to say I'm sorry to hear about your dad. I hope he comes through okay.

We'll keep your family in our prayers.

Chief Rum · 05-16-2010, 06:59 AM

Sorry to hear about your Dad, Senator. I hope it turns out better for him, and this is just a bump in his personal road.

That said, as to your original question, things change from state to state, so you will need to abide by those laws which apply, so I would highly recommend getting a lawyer (or talking to yours, as you said). He might recommend a lawyer who is familiar with New Mexico property law (and I think that's a good idea), although you would still want to keep your lawyer involved if your dad is a resident of Texas (like you, IIRC).

In California, where I see a ton of deeds like these, you need to have your dad execute and have notarized a deed from him to you, your brother and sister. It would be best if you had a copy of the deed into your dad, so you know how he is holding title to the property. However he is holding title, that should be the Grantor line, and however the three of you wish to hold title should be in the Grantee line. The deed needs to also include the property legal description, which should be on your dad's deed. Additional information which helps is to include the property tax APN (property number that the county assigns to the property).

Once you have a signed and notarized deed with all of this information, you need to have it recorded in the county records of the county in which the cabin is in. An online search should show you the county and where the county records office is (there is probably a county seat, a main city where all the county offices will be located--I am assuming this is going to be a relatively rural county, given this is a cabin).

I have never owned property, I only work in the field, so I have never tried to get one of these deeds. It wouldn't surprise me if you could find a form of a deed which would work online. But a lawyer with property knowledge would have one, or you could talk to your real estate agent or contact a title company (like the one I work at). Notaries you can find in a lot of places, although in this case you might need one to come to you and the ICU your dad is in. This is something hospitals might run into enough to have one close by or even on staff, I would imagine.

In most counties in California, there is a transfer tax and a document tax. When you have a deed recorded, the county will often require both to be paid. Since this is an in-family transfer, you will probably not be required to pay the transfer tax, which is generally for unrelated third party transfers. But the document tax is like a filing fee; pretty sure that one's never waived. That's pretty cheap, though--it's the transfer tax you want to avoid. This is definitely something the lawyer should know about.

Oh, one word of warning. If your dad is ill as in may not get out of the ICU (and again, I am truly sorry if that's the case), it's likely that the legitimacy of the transfer will be questioned in the subsequent probate. I figure this is what your dad would like to avoid. It's late to be doing this, but you might want to ask your lawyer about the possibility of setting up a trust for your father, setting you and your siblings as the successor trustees, and then executing a deed from your father to his trust. This should provide much more protection from subsequent probate and might also save a ton in inheritance tax.

But once again, I stress that this advice comes heavily from knowledge of California law, and I have no idea how closely New Mexico or Texas property transfer law and trust agreements matches those of California. Definitely talk to your lawyer, and soon.

Senator · 05-16-2010, 01:10 PM

Chief,

Thanks for the detailed reply. This was the feedback I was hoping to get before I plunged into this on Monday. I wanted a basic "how it generally works" before I started talking to legal counsel and getting pulled in directions I don't want to go.

Dad doesn't think he is getting out of there, and by the looks of things, he is probably right. He is a young guy, it is a tough deal. He is remarried, and his wife has 3 sons who love the cabin. Dad wants to make sure there is no doubts who has ownership, which would be his children. I know he has things in the will, but for some reason, he wants this done while he is alive.

All this info will at least arm me with some knowledge in making the right call.

Chief Rum · 05-16-2010, 02:32 PM

Quote:

Originally Posted by Senator

Chief,

Thanks for the detailed reply. This was the feedback I was hoping to get before I plunged into this on Monday. I wanted a basic "how it generally works" before I started talking to legal counsel and getting pulled in directions I don't want to go.

Dad doesn't think he is getting out of there, and by the looks of things, he is probably right. He is a young guy, it is a tough deal. He is remarried, and his wife has 3 sons who love the cabin. Dad wants to make sure there is no doubts who has ownership, which would be his children. I know he has things in the will, but for some reason, he wants this done while he is alive.

All this info will at least arm me with some knowledge in making the right call.

Man, that's a tough situation.

I gotta tell ya, though--the introduction of a new marriage is going to complicate things, especially if Texas is a community property state like California. His new wife may need to sign over rights as well to make this happen. I hope that is not an issue.

Fortunately, her three sons (as adults, minors, they wouldn't have rights anyway) will have no claim whatsoever to the property except through her interest. But I would be surprised if his current wife doesn't have some acquired rights to the property through marriage.

It is good that there is a will (does your father have a lawyer, and is he/she a good one?--he might be one to contact as well). That will help with probate matters.

Good luck, Senator. And sorry about your father.

sooner333 · 05-16-2010, 03:06 PM

Sorry about your father, Senator. Hopefully he can pull through.

(Texas is a community property state).

Also, by giving a gift of property during life you a) subject your dad to the gift tax which, unlike the estate tax, has not been repealed for 2010 (which shouldn't be a problem if he hasn't given over $1mm in gifts above the exemption during his life). Also, a gift does not get a stepped up basis in the property for your income tax purposes, so you would have your Dad's basis in the property (at death, you get a stepped up basis of $3.5mm of property, but this is a new thing with the repeal of the estate tax). Of course, this might not be important to you, I just wanted to bring up what I know. I also want to say I am not an attorney (yet).

RainMaker · 05-16-2010, 09:13 PM

Not really sure about this stuff outside of talking to a lawyer/accountant, but just want to say I'm sorry to hear about your Dad.

chesapeake · 05-17-2010, 12:55 PM

Quote:

Originally Posted by sooner333

Also, by giving a gift of property during life you a) subject your dad to the gift tax which, unlike the estate tax, has not been repealed for 2010 (which shouldn't be a problem if he hasn't given over $1mm in gifts above the exemption during his life). Also, a gift does not get a stepped up basis in the property for your income tax purposes, so you would have your Dad's basis in the property (at death, you get a stepped up basis of $3.5mm of property, but this is a new thing with the repeal of the estate tax). Of course, this might not be important to you, I just wanted to bring up what I know. I also want to say I am not an attorney (yet).

I am deeply sorry to read this, Senator.

These tax points are important to consider. Depending on the value of the cabin, you do not want to be put in a situation where you have to sell it because you can't afford the gift taxes. An estate lawyer can review the language in his will to see how ironclad it is. And executing the transfer now doesn't necessarily ensure that it isn't challenged if your Dad passes away.

duckman · 05-17-2010, 01:04 PM

You might want to look at a "quit claim" deed transfer. My brother did so when he transferred property to my cousin.

Senator · 08-30-2011, 08:28 PM

One year ago, dad passed. Still sucks, as most of you know.

We got the "quit claim" from his wife and that did the trick. Good to know my son will go with me there and hear the stories without fear of losing it.

duckman · 08-30-2011, 08:52 PM

Sorry for your loss, Senator. Losing a parent just plain sucks.

Lathum · 08-30-2011, 08:55 PM

Hope you have found some peace this year and can share great memories with your son.

Chief Rum · 08-30-2011, 09:00 PM

Quote:

Originally Posted by Senator

One year ago, dad passed. Still sucks, as most of you know.

We got the "quit claim" from his wife and that did the trick. Good to know my son will go with me there and hear the stories without fear of losing it.

It is somewhat ironic that I participated in this thread and helped you Senator, not knowing that at the time, unknown to both me and my Mom, she had lung caancer and would pass away a few months later. I ended up facing this exact same situation with respect to Mom's condo.

As always, sorry for your loss.

tarcone · 08-30-2011, 09:14 PM

Sorry to here about your Dad.

My parents were talking to my siblings and myself about transferring their cabin in Colorado to us. But we were all at least 16 hours away from it. It was a summer cabin. Needed to be closed down for the winter and opened for the summer. The idea of splitting costs 4 ways and the ability for one of us to do the opening/closing killed the deal. They ended up selling it. A sad day indeed. But for the best. It just wasnt practical for any of us to get into that type of arrangement.

I hope all turns out well. Good luck.

CleBrownsfan · 08-30-2011, 09:14 PM

Sorry for your loss Senator

05-16-2010, 06:59 AM	#3
Chief Rum Hall Of Famer Join Date: Oct 2000 Location: Where Hip Hop lives	Sorry to hear about your Dad, Senator. I hope it turns out better for him, and this is just a bump in his personal road. That said, as to your original question, things change from state to state, so you will need to abide by those laws which apply, so I would highly recommend getting a lawyer (or talking to yours, as you said). He might recommend a lawyer who is familiar with New Mexico property law (and I think that's a good idea), although you would still want to keep your lawyer involved if your dad is a resident of Texas (like you, IIRC). In California, where I see a ton of deeds like these, you need to have your dad execute and have notarized a deed from him to you, your brother and sister. It would be best if you had a copy of the deed into your dad, so you know how he is holding title to the property. However he is holding title, that should be the Grantor line, and however the three of you wish to hold title should be in the Grantee line. The deed needs to also include the property legal description, which should be on your dad's deed. Additional information which helps is to include the property tax APN (property number that the county assigns to the property). Once you have a signed and notarized deed with all of this information, you need to have it recorded in the county records of the county in which the cabin is in. An online search should show you the county and where the county records office is (there is probably a county seat, a main city where all the county offices will be located--I am assuming this is going to be a relatively rural county, given this is a cabin). I have never owned property, I only work in the field, so I have never tried to get one of these deeds. It wouldn't surprise me if you could find a form of a deed which would work online. But a lawyer with property knowledge would have one, or you could talk to your real estate agent or contact a title company (like the one I work at). Notaries you can find in a lot of places, although in this case you might need one to come to you and the ICU your dad is in. This is something hospitals might run into enough to have one close by or even on staff, I would imagine. In most counties in California, there is a transfer tax and a document tax. When you have a deed recorded, the county will often require both to be paid. Since this is an in-family transfer, you will probably not be required to pay the transfer tax, which is generally for unrelated third party transfers. But the document tax is like a filing fee; pretty sure that one's never waived. That's pretty cheap, though--it's the transfer tax you want to avoid. This is definitely something the lawyer should know about. Oh, one word of warning. If your dad is ill as in may not get out of the ICU (and again, I am truly sorry if that's the case), it's likely that the legitimacy of the transfer will be questioned in the subsequent probate. I figure this is what your dad would like to avoid. It's late to be doing this, but you might want to ask your lawyer about the possibility of setting up a trust for your father, setting you and your siblings as the successor trustees, and then executing a deed from your father to his trust. This should provide much more protection from subsequent probate and might also save a ton in inheritance tax. But once again, I stress that this advice comes heavily from knowledge of California law, and I have no idea how closely New Mexico or Texas property transfer law and trust agreements matches those of California. Definitely talk to your lawyer, and soon. __________________ . . I would rather be wrong...Than live in the shadows of your song...My mind is open wide...And now I'm ready to start...You're not sure...You open the door...And step out into the dark...Now I'm ready. Last edited by Chief Rum : 05-16-2010 at 07:02 AM.

05-16-2010, 01:10 PM	#4
Senator FOFC's Elected Representative Join Date: Oct 2000 Location: The stars at night; are big and bright	Chief, Thanks for the detailed reply. This was the feedback I was hoping to get before I plunged into this on Monday. I wanted a basic "how it generally works" before I started talking to legal counsel and getting pulled in directions I don't want to go. Dad doesn't think he is getting out of there, and by the looks of things, he is probably right. He is a young guy, it is a tough deal. He is remarried, and his wife has 3 sons who love the cabin. Dad wants to make sure there is no doubts who has ownership, which would be his children. I know he has things in the will, but for some reason, he wants this done while he is alive. All this info will at least arm me with some knowledge in making the right call. __________________ "i have seen chris simms play 4-5 times in the pros and he's very clearly got it. he won't make a pro bowl this year, but it'll come. if you don't like me saying that, so be it, but its true. we'll just have to wait until then" imettrentgreen "looking at only ten games, and oddly using a median only, leaves me unmoved generally" - Quiksand

05-16-2010, 03:06 PM	#6
sooner333 College Starter Join Date: Oct 2000 Location: Norman, OK	Sorry about your father, Senator. Hopefully he can pull through. (Texas is a community property state). Also, by giving a gift of property during life you a) subject your dad to the gift tax which, unlike the estate tax, has not been repealed for 2010 (which shouldn't be a problem if he hasn't given over $1mm in gifts above the exemption during his life). Also, a gift does not get a stepped up basis in the property for your income tax purposes, so you would have your Dad's basis in the property (at death, you get a stepped up basis of $3.5mm of property, but this is a new thing with the repeal of the estate tax). Of course, this might not be important to you, I just wanted to bring up what I know. I also want to say I am not an attorney (yet). Last edited by sooner333 : 05-16-2010 at 03:06 PM.

08-30-2011, 08:28 PM	#10
Senator FOFC's Elected Representative Join Date: Oct 2000 Location: The stars at night; are big and bright	One year ago, dad passed. Still sucks, as most of you know. We got the "quit claim" from his wife and that did the trick. Good to know my son will go with me there and hear the stories without fear of losing it. __________________ "i have seen chris simms play 4-5 times in the pros and he's very clearly got it. he won't make a pro bowl this year, but it'll come. if you don't like me saying that, so be it, but its true. we'll just have to wait until then" imettrentgreen "looking at only ten games, and oddly using a median only, leaves me unmoved generally" - Quiksand

08-30-2011, 09:14 PM	#15
CleBrownsfan Pro Rookie Join Date: Jul 2001 Location: C-Town	Sorry for your loss Senator __________________ *XBox Gamertag:* Pronk32 FOOL-X - Cleveland Naps FOOL - Cleveland Cyclones SLOP - Cuyahoga Spiders

05-15-2010, 07:48 PM	#2
Drake assmaster Join Date: Feb 2001 Location: Bloomington, IN	No advice, just wanted to say I'm sorry to hear about your dad. I hope he comes through okay. We'll keep your family in our prayers.

05-16-2010, 09:13 PM	#7
RainMaker Hall Of Famer Join Date: Jun 2006 Location: Chicago, IL	Not really sure about this stuff outside of talking to a lawyer/accountant, but just want to say I'm sorry to hear about your Dad.

08-30-2011, 08:55 PM	#12
Lathum Favored Bitch #1 Join Date: Dec 2001 Location: homeless in NJ	Hope you have found some peace this year and can share great memories with your son.

08-30-2011, 09:14 PM	#14
tarcone Coordinator Join Date: Jul 2004 Location: Pacific	Sorry to here about your Dad. My parents were talking to my siblings and myself about transferring their cabin in Colorado to us. But we were all at least 16 hours away from it. It was a summer cabin. Needed to be closed down for the winter and opened for the summer. The idea of splitting costs 4 ways and the ability for one of us to do the opening/closing killed the deal. They ended up selling it. A sad day indeed. But for the best. It just wasnt practical for any of us to get into that type of arrangement. I hope all turns out well. Good luck.

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