Real Estate Law Archives - Page 3 of 3 - Tressler AssociatesSkip to content
When your parents pass away, life is difficult enough. The last thing you want is to be stuck paying the mortgage on their house or risk foreclosure. It is quite common to want to sell the home as soon as possible. However, as many have found out the hard way, it’s not exactly as simple as signing a contract.
From time to time I will see a real estate contract that the children of a deceased parent have signed to sell that parent’s home. Those children can often either point to a Will showing that they are inheriting the home or the Tennessee intestacy laws state that they are inheriting the home. Either way, it seems clear that those children should have the power to sell the home. Unfortunately, it’s not that easy.
The best case scenario is that probate on the decedent’s estate is complete and those who have inherited the house can sell it. But I’m not talking about that situation. I’m talking about the situation when probate has not been started or when probate is not complete. Although the process for selling a home in those situations is not always identical, there are some common patterns. For instance, it is quite likely that you will need to get court approval to sell the home if probate has begun. Or, if you have not begun probate, you will probably have to open probate and then get approval from the court to sell. You can almost guarantee that we will need consent from the Tennessee Department of Revenue to sell the home and a release of potential claims from the Bureau of TennCare. If probate has not been completed, the best case scenario is that you can close on the home during the four month creditor’s period in probate and closing agent will hold your proceeds in escrow until the completion of the creditor’s period.
As you’re probably realizing, this can quickly become a complicated process. Also, I would not be doing my job if I did not mention that a Trust can avoid this. If your property is held in a Trust, even a Revocable Living Trust, it will pass outside of probate because it does not belong to the decedent, it belongs to the Trust. This simplifies the selling process immensely. However, whether you have a Trust, a Will, or no Will at all, we are equipped to walk you through this process.
Almost every client begins their journey to creating estate documents with an intake meeting. Inevitably, the first questions asked when the meeting is scheduled is, “what should I bring?” The good news is that there is no requirement for you to bring anything to your intake meeting. However, to get the most out of your meeting, it is beneficial to prepare for it. Here are a few key ways to do that:
Review and bring any prior estate documents that you have. This may not be necessary for your circumstances, but it is definitely helpful.
Gather basic information regarding your assets. One of the most important parts of the intake meeting is gathering information on what you own. At this point, we may not need to go into extensive detail, but we will need an outline of sorts. This does includes assets, such as real estate, that may be located in another state.
Think about what you want to happen with your assets and consider what is most important to you about that plan. For example, are you really wanting avoid probate? Do you have a lot of creditors? Are your children minors? At what ages do you want your heirs (or beneficiaries) to receive their distribution?
Come with questions. Another large part of the first meeting involves me teaching clients about the law and various options available. This is usually a great conversation that is only made better if questions are involved. This is your plan that we are building and I want you to be completely comfortable with the options you choose.
If you are interested, use our intake informational sheets. If you would like assistance in thinking through some of the details, our office does have intake forms that can be useful. Please feel free to use these, but they are optional.
The bottom-line is that we hope to make the intake process pleasant and straight-forward. Even if you feel completely unprepared for the meeting, we will gladly walk you through the process.
It may seem rare that your taxes decrease, but as of January 1, 2016, the State of Tennessee will no longer tax your Estate. This has been part of a plan that the State enacted in 2012, gradually increasing the amount of a tax-exempt estate until this year, when the tax was repealed completely.
Practically, this has several impacts.
1. First, this may simplify your estate planning.Because a large part of estate planning can be minimizing taxes, there is no longer a need to strategize in order to minimize Tennessee estate taxes.
2. Second, in most cases, there will be one less step involved in probating an estate or selling the real estate of a decedent.Typically, a clearance letter is required from the Tennessee Department of Revenue stating that the estate did not owe any inheritance tax.We will no longer need to receive that release.This is especially important when selling the real estate of a decedent.Obtaining that release has often been the delay of sales.
3. Third, it should be noted that there is still a Federal estate tax for estates over $5,450,000.00 so planning will be necessary to minimize or eliminate tax implications if your estate may exceed this amount.
It is important to realize that this only applies to decedents who passed away on or after January 1, 2016. This is because an estate is subject to the estate tax laws in place during the year in which the decedent passed away.
Unfortunately, phishing scams have become common place. Most email users are rightfully leery of an email pertaining to wiring information. However, in the rush of a closing, it is possible to fall prey to one recent scam.
WARNING!
The Federal Trade Commission and the National Association of Realtors have both issued warnings regarding the recent email and wire transfer scam concerning closing costs. In the course of a normal transaction, a buyer will often wire his or her funds to us prior to closing and we will disburse the funds according to the needs of the transaction.
In this particular scam, hackers pose as real estate agents, title company representatives, or another professional and send an email to the buyer stating that there has been a “last minute change” to the wiring information and the funds are to be sent to a different account. Because “last minute changes” can be common place in a closing, some buyers will not question this change and send the funds (sometimes hundreds of thousands of dollars) straight into the account of the hacker.
Anytime you receiving wiring instructions from us or any other company, please feel free to call and confirm those instructions. You can also call to confirm that we have received the wire after it has been sent. We want to be sure that your closing runs smoothly and the funds are transferred to the appropriate parties and out of the hands of scammers.
CONTACT US
If have a question or concern please contact us about any communication you have received asking for payment. Or any other legal matter feel free to email us or call.
The attorneys at Tressler & Associates regularly work with clients who own out-of-state real estate. Owning real estate outside of Tennessee drastically affects estate planning, so it’s always something we ask new clients if they have.
There are several laws to consider when clients own real estate outside of Tennessee. You have to contend with Tennessee’s and the other state’s estate planning laws. You should always make sure your estate planning attorney knows every state in which you hold property.
What is Out-of-State Real Estate?
“Out-of-state real estate” includes everything from a beach mansion in California to a small, empty plot of land in the Midwest. Did you know that without proper planning, your heirs will have to do a probate proceeding in Tennessee and any other state you own property in? Real estate outside of Tennessee doesn’t transfer through Tennessee probate proceedings.
Thankfully, there is an easy way to prevent this hassle. The most common way to avoid multiple probate proceedings is by placing the property in a Trust. By using a simple Trust, your family can usually avoid probate proceedings. Sometimes, the laws of other states don’t allow it.
Why Do You Need An Estate Planning Attorney?
At Tressler & Associates, PLLC, we can build a Trust that suits your needs. We can also draft the deed necessary to place your Tennessee real estate into that Trust. Then, we will work with attorneys in the other state to transfer the rest of your real estate into the Trust. As simple as this process is, it is rarely done. Without it, you risk leaving your heirs with a mess on their hands.
Even if you do not currently own a piece of real estate outside of Tennessee, consider this technique. You can start creating a Trust in advance of a purchase. We can build the Trust so that it is ready to receive that second piece of real estate whenever you make the purchase or not.
One of our goals is to make the transition of assets to your heirs as seamless as possible.
Contact the Estate Planning Attorneys at Tressler & Associates
For assistance with passing down out-of-state real estate, our estate planning attorney at Tressler & Associates has the experience to help you. This is a complicated process for anyone without the necessary experience to complete it. We’ll make sure that after you pass, your family will not have to deal with multiple probate proceedings. Contact us for help today.
We have seen many situations where a real estate contract is signed just before something goes wrong. Many discover that the person who signed the contract to sell a property is not the same person who holds the title. Once we begin asking questions, we soon find out that the title holder has passed away. The person selling the property is actually the spouse, child, or executor. This causes whole real estate transactions to fall apart all the time.
Can You Save Your Real Estate Transactions?
What do you do then? Well, it depends. As generic as it may sound, this answer greatly applies to this situation. There are many factors that may play into the process of closing on that contract. For example, here are a few questions to ask the seller:
Did the decedent have a Will?
If not, who were the decedent’s heirs? Have any heirs predeceased the decedent?
Was the decedent fifty-five years of age or older?
Was the decedent married?
Have any probate proceedings been started?
The list goes on. However, the good news is, once we can get these answers, we can come up with a comprehensive plan for you. This way you can come as close as possible to the constraints of your original contract. You will want someone who has handled many of these transactions to be advising you on this important sale.
Contact Tressler & Associates for Help
Make sure the property you’re trying to purchase is actually owned by the seller. If you find out they don’t, we can help you figure out why and help you get the property you want. If you’re trying to sell property left to you by a loved one who passed away, we can help. Let us make sure you have proof of ownership and can sell the property without any issues.
Whether you have a signed contract on real estate or not, contact us. We can walk you through the process that would apply to your specific scenario.
It may seem rare that your taxes decrease, but as of January 1, 2016, the State of Tennessee will no longer tax your Estate. This has been part of a plan that the State enacted in 2012, gradually increasing the amount of a tax-exempt estate until this year, when the tax was repealed completely.