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Estate Planning Questions and Answers
Excerpts from questions sent to Layne Rushforth.
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This page contains questions that were sent via e-mail to
Layne Rushforth, along with the responses to those questions. All answers were written by attorney Layne Rushforth, who practices law in Las Vegas, Nevada, and nothing here is intended to solicit legal work for any other state. Those submitting questions are advised to consult competent legal counsel, but that advice has been omitted from most of the answers shown here. The questions and answers have been modified both to conceal the identify of the person asking the question and to clarify the legal issues, and sometimes several similar questions and answers have been blended together. DISCLAIMER: The answers given are provided free of charge as general information only and do not constitute legal, financial, or investment advice. Laws vary from state to state, and many laws have exceptions that may apply to each situation. The facts, circumstances, and the provisions of pertinent legal documents make each situation unique. WARNING: Before acting (or not acting) be sure to consult with the appropriate attorney (as to legal matters), certified public accountant (as to tax returns and tax matters), and/or an investment advisor (as to investments) who is licensed in the state whose laws apply to the situation, who has experience in the field, and who has an adequate opportunity to review the pertinent facts, documents, and laws related to your situation.
Question List
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Joint Tenancy
Question: Does joint tenancy work?
Answer: Joint tenancy is a form of co-ownership. Although it is common to see the phrase "as joint tenants with rights of survivorship" on ownership documents, the reference to the right of survivorship is redundant. "Joint tenancy" inherently includes a right of survivorship, and unless the joint tenancy ownership is converted into something else, the last surviving joint tenant will own the asset titled in that form. [Note: "tenancy in common" sounds similar, but it does not include a right of survivorship.] Does joint tenancy work? Yes, it "works", but it may not accomplish specific objectives, and it can even cause unintended and undesired results. For example, joint tenancy with children can result in taxable gifts to the children, can expose assets to the children's creditors, and can be "undone" if the children add spouses as additional owners or die in the "wrong" order. Joint tenancy between spouses will leave the asset in the surviving spouse's control, and, if there are children from prior marriages, the survivor is free to disinherit the children of the predeceased spouse.
Question List
Access to Inherited Land
Question: Can I be prevented from passing an adjoining land owner to a piece of property that I own? Is there a law that will allow me a right of passage to this property that I have recently inherited?
Answer: No, you probably cannot be denied access, and yes, there is probably a law giving you right of access. I say "probably" because there are too many unknown factors to give you a definitive answer. The laws of most states will not allow a parcel of land to become landlocked with the property of other owners. There is usually an implied right-of-way or easement that attaches to the property.
It is important that you contact an experienced real estate attorney licensed in the state where the land is located. It is usually preferable to use an attorney who practices in the courts located in the county where the land is located because court action is sometimes required to confirm an adjacent landowner's right of access.
Question List
Adding Names to a Land Title
Question: My mother wants to add my name and my wife's name to the title to a piece of real estate she owns. How do we do this?
Answer: That is done by deed. Your mother should have an attorney discuss the implications of this with her, and I will mention some of those implications:
- This will constitute a gift to you and your wife, and depending on the value of the property may be a taxable gift for federal gift tax purposes. An appraisal should be obtained to ascertain the value of the property in order to determine the gift-tax implications.
- If the property is conveyed to the three of you as joint tenants, each of you will have a one-third undivided interest, and the last surviving joint tenant takes all. Each joint tenant's interest is an asset that is available to that person's creditors, so your mother's land could be subject to a lien against you if you or your wife is sued.
- If there is a divorce between you and your wife, your wife has an ownership interest that she is entitled to keep. I have seen family property "held for ransom" during an acrimonious divorce battle.
- After this gift, your income tax basis in the portion given to you will be a proportionate share of your mother's basis (purchase price plus capital improvements). If the property has appreciated, then you will report the capital gain on the property if and when you sell it. On the other hand, if she were to leave the entire property to the two of you in her will or living trust, the property would get a "stepped-up" basis equal to the appraised value at the time of your mother's death.
- If your mother wants the lot out of her taxable estate, she cannot have her name on the deed, and she cannot retain any right to use or otherwise benefit from the lot.
After your mother has consulted with a qualified attorney, the attorney can prepare the deed your mother decides she wants.
Question List
Mother's Personal Belongings
Question: My mother passed away last year, and she was survived by my father, who is not very cooperative in distributing my mother's personal belongings. I was wondering when my siblings and I should petition the court for our share of our mother's estate. Father has recently become engaged to be married, and he has given his fiancee personal items (i.e. clothes, jewelry, etc.) of my mother's. My sister and I feel that this is not "right." Legally is there anything that we may do to put this to a halt? His property does not matter to us at this point.
Also, he made a will right after my mother's death. Will his marriage make his will null and void?
Answer: There are questions that need to be answered first, such as:
- What assets are there that are in your mother's name alone? (The general rule is that any assets that were held jointly by your mother and father "as joint tenants" are now his and his alone, regardless of any will stating otherwise.)
- Did your mother leave a will? If so, what does it say? Does it say you are to get something now or only after the surviving spouse dies?
- If there is no will, what do the laws of her state provide for the distribution of her estate? (In Nevada, for example, a surviving spouse is entitled to all of any community property and a portion of the separate property.)
It is possible that you are not entitled to anything at this time; perhaps your father gets everything under your mother's will or under the applicable state intestate succession statutes. I would imagine that in all states, if a child is entitled to share in a deceased parent's estate, that child is also entitled to file a petition in the state's probate court to get things moving. If your father is named as first choice as executor, the court can often disregard that designation if he delays getting things going or if he refuses to honor the will's terms.
Does a marriage invalidate a will? No, but the spouse may have the right to claim a portion of the estate despite what the will says. In Nevada, for example, a spouse is entitled to what he or she would have received as if there were no will, but the balance of the estate is distributed as provided in the will.
To know what your rights are, you must consult with a qualified, experienced attorney who is licensed in the state whose laws apply to your mother's estate.
Question List
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Updated 8 January 2000.
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