Kay Brooks

Ask the Experts: Divorce calls for new deed for home

Published: Wednesday, Sep. 5, 2012 - 12:00 am | Page 7B

How to retitle property after a divorce. How to handle a trust after a spouse's death. This week, Sacramento estate planning attorney Kay Brooks answers readers' questions on those topics.

To see more of her "Ask the Experts" advice or that of our other local experts on taxes, investing, personal finances and jobs/careers, go to www.sacbee.com/personalfinanceblog.

I am recently divorced. My ex and I still own a house together, listed on the deed as community property with rights of survivorship. Is it necessary to change the deed? If so, how should we be listed?

Yes, you definitely need to execute a new deed. Retitling the property will save time, energy and expense later.

In California, community property is a form of ownership exclusive to married couples and registered domestic partners. Because you are divorced, you and your ex can no longer own real estate as community property.

If your property agreement does not specifiy how you own the residence following the divorce, you will need to agree on how to hold title going forward.

If a lawyer assisted you with the divorce, ask him/her to prepare a new deed.

In general, you can own the property as "tenants in common" or as "joint tenants."

If you own the property as tenants in common, each of you can dispose of your half as you wish now or in your will/trust. This means one of you could co-own the property with someone else at some point.

Also, as tenants in common, you can own unequal interests in the property.

If you own the property as joint tenants, you must own equal interests in the property. Upon the first of your deaths, the other will automatically inherit the decedent's property share.

Depending on your relationship with your ex and how you plan to use the property, you may want to consider a Tenancy in Common Agreement that sets forth terms and conditions for management, upkeep and use of the property.

An attorney can help determine the best form of co-ownership for your situation, as well as prepare any additional documentation.

My wife died recently. What do I do regarding our revocable trust? Also, I understand that any shares of stock get a step-up in basis. How do I accomplish all this?

I am sorry for your loss. With revocable trusts, often called living trusts, many important steps must be completed after a death. A complete answer to your questions requires more space than I have and depends on the unique facts of your situation and the specific provisions of your trust.

There are key deadlines to keep in mind. Depending on how your trust is structured, you may be required to send notifications to all heirs and beneficiaries, stating your wife has died and a portion of the trust has become irrevocable. These should be sent within 60 days of her death.

Qualified disclaimers, used for tax planning when someone prefers to forgo all or part of an inheritance and let it pass to an alternate beneficiary, must be made within nine months of death.

Estate tax returns, if required, are due nine months from date of death. (For deaths in 2012, a federal estate tax return is required for estates above $5.12 million.)

These are only some of the relevant deadlines.

Your wife's separate property assets and any community property assets you own together will receive a stepped-up basis to the value as of the date of her death. You will need to document the date of death values for these assets and keep this information in your records.

These are among the most common issues. I strongly recommend consulting a lawyer experienced in trust administration who can guide you on the exact steps needed.

– Compiled by Claudia Buck

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