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RayAnswers, Attorney
Category: Estate Law
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Experience:  Texas lawyer for 30 years in Estate law
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A property that's owned in a personal name what is the best

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A property that's owned in a personal name what is the best way to avoid probate court if I want to inherit the property to a specific child in a family with several children.also will there be any tax to that child when he gets the property.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

You could deed it to them as remaindermen and you keep a life estate.Then when you decease it passes under the deed and avoid probate.You keep it for your lifetime, you would be able to quitclaim the life estate if you say have to go into nursing home.But thats the best way to deed them the remainder interest keeping life estate if you are sure you want them to have it.It will pass by deed rather than probate.Just know that you cannot change mind once such a deed is filed you only then have life estate.

I appreciate the chance to help you today.Thanks again.

If you can positive rate 5 stars it is much appreciated.

Reference

https://www.avvo.com/legal-guides/ugc/the-advantages-of-a-life-estate-in-new-york

Lawyer can draft you a deed locally for say $200 or so and file it in county deed records.

Customer: replied 3 months ago.
This means the deed has to be changed that it should transfer to that specific person or entity? and what happens if I sell the property or change the mind? and how is it if goes to nursing home and want to quitclaim what needs to be done?

If you go into nursing home it is exempt here as life estate, since no probate estate recovery cannot touch it , it passes by deed.No changing mind here, the only option is to quit claim the life estate and exit early if you choose.Otherwise the remaindermen take it at death.I mean you can gift it to them now unconditionally if you choose.The lifetime gift tax is $5,490,00 so no taxes on the gift.They may then have to pay the property taxes.

Thanks for the follow up.

Customer: replied 3 months ago.
I don't understand the answer.what happens if I sell the property or change the mind

If you deed it to them --they get remainder interest and you keep life estate you cannot sell t or get it back.If you want that option a legal will can allow you to do that.Then only if you own it at death do they inherit it.If you have doubts here just will it to them.Yes they will have to probate will but you can change your mind and retain ownership.Nothing wrong with that.

Will forms

LAST WILL AND TESTAMENT OF

_______________________________________
[Name of Testator]

I, _______________________________________ [Name of Testator], a resident of ___________________, New York, being of sound and disposing mind and memory and over the age of eighteen (18) years or having been lawfully married or a member of the armed forces of the United States or a member of an auxiliary of the armed forces of the United States or a member of the maritime service of the United States, and not being actuated by any duress, menace, fraud, mistake, or undue influence, do make, publish, and declare this to be my last Will, hereby expressly revoking all Wills and Codicils previously made by me.

I. EXECUTOR: I appoint ____________________________________ as Executor of this my Last Will and Testament and provide if this Executor is unable or unwilling to serve then I appoint ____________________________________ as alternate Executor. My Executor shall be authorized to carry out all provisions of this Will and pay my just debts, obligations and funeral expenses.

II. ACKNOWLEDGMENT OF CHILDREN

I have the following children, and all references to "children" in my Last Will and Testament refer to the named following:

Name: ____________________________________ Date of Birth: __________________
Name: ____________________________________ Date of Birth: __________________
Name: ____________________________________ Date of Birth: __________________
Name: ____________________________________ Date of Birth: __________________

III. SIMULTANEOUS DEATH OF BENEFICIARY: If any beneficiary of this Will, including any beneficiary of any trust established by this Will shall die within 60 days of my death or prior to the distribution of my estate, I hereby declare that I shall be deemed to have survived such person.

IV. BEQUESTS:

I will, give, and bequeath unto the persons named below, if he or she survives me, the Property described below:

Name: _____________________________________
Address: ___________________________________
Relationship: ________________________________
Property: ___________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Name: _____________________________________
Address: ___________________________________
Relationship: ________________________________
Property: ___________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Name: _____________________________________
Address: ___________________________________
Relationship: ________________________________
Property: ___________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Name: _____________________________________
Address: ___________________________________
Relationship: ________________________________
Property: ___________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

If a named beneficiary to this Will predeceases me, the bequest to such person shall lapse, and the property shall pass under the other provisions of this Will. If I do not possess or own any property listed above on the date of my death, the bequest of that property shall lapse.

V. ALL REMAINING PROPERTY; RESIDUARY CLAUSE: I give, devise, and bequeath all of the rest, residue, and remainder of my estate, of whatever kind and character, and wherever located, to my children per share, but if any child predeceases me, then his or her share will pass, per share, to his or her lineal descendants, natural or adopted, if any, who survive me; but if there are none, then his or her share will lapse and pass equally as part of the shares of my other named children; but if none of my named children survives me or leaves a lineal descendant who survives me, then according to one of the following options:

(I have placed my initials next to the provision below that I desire to adopt. An unmarked provision is not adopted by me and is not a part of this Will.)

_____ The rest, residue, and remainder of my estate shall pass to____________________________________ [name of alternate beneficiary] as alternate beneficiary of the rest, residue, and remainder of my estate.

_____ The rest, residue, and remainder of my estate shall be divided according to the order of intestate succession in the State of New York.

VI. ADDITIONAL POWERS OF THE EXECUTOR: My Executor shall have the following additional powers with respect to my estate, to be exercised from time to time at my Executor's discretion without further license or order of any court.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

VII. WAIVER OF BOND, INVENTORY, ACCOUNTING, REPORTING AND APPROVAL: My Executor and alternate Executor shall serve without any bond, and I hereby waive the necessity of preparing or filing any inventory, accounting, appraisal, reporting, approvals or final appraisement of my estate. I direct that no expert appraisal be made of my estate unless required by law.

VIII. OPTIONAL PROVISIONS: I have placed my initials next to the provisions below that I adopt as part of this Will. Any unmarked provision is not adopted by me and is not a part of this Will.

________ If any beneficiary to this Will is indebted to me at the time of my death, and the beneficiary evidences this debt by a valid Promissory Note payable to me, then such person's portion of my estate shall be diminished by the amount of such debt.

________ Any and all debts of my estate shall first be paid from my residuary estate. Any debts on any real property bequeathed in this Will shall be assumed by the person to receive such real property and not paid by my Executor.

________ I direct that my remains be cremated and that the ashes be disposed of according to the wishes of my Executor.

________ I direct that my remains be cremated and that the ashes be disposed of in the following manner:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________

________ I desire to be buried in the _____________________________ cemetery in __________________ County, New York.

IX. CONSTRUCTION: The term "testator" as used in this Will is deemed to include me as Testator or Testatrix. The pronouns used in this Will shall include, where appropriate, either gender or both, singular and plural.

X. SEVERABILITY AND SURVIVAL: If any part of this Will is declared invalid, illegal, or inoperative for any reason, it is my intent that the remaining parts shall be effective and fully operative, and that any Court so interpreting this Will and any provision in it construe in favor of survival.

IN WITNESS WHEREOF, I, _______________________________________ [Name of Testator], hereby set my hand to this last Will, on each page of which I have placed my initials, on this ________ day of ____________________, 20______ at _____________________________________________________________, State of New York.

_______________________________________ [Signature]
_______________________________________ [Printed or typed name of Testator]
_______________________________________ [Address of Testator, Line 1]
_______________________________________ [Address of Testator, Line 2]

WITNESSES

The foregoing instrument, consisting of ________ pages, including this page, was signed in our presence by _______________________________________ [name of Testator] and declared by _________________ [him or her] to be _________________ [his or her] last Will. We, at the request and in the presence of _________________ [him or her] and in the presence of each other, have subscribed our names below as witnesses. We declare that we are of sound mind and of the proper age to witness a will, that to the best of our knowledge the testator is of the age of majority, or is otherwise legally competent to make a will, and appears of sound mind and under no undue influence or constraint. Under penalty of perjury, we declare these statements are true and correct on this ________ day of ____________________, 20______ at _____________________________________________________________, State of New York.

_______________________________________ [Signature of Witness #1]
_______________________________________ [Printed or typed name of Witness #1]
_______________________________________ [Address of Witness #1, Line 1]
_______________________________________ [Address of Witness #1, Line 2]

_______________________________________ [Signature of Witness #2]
_______________________________________ [Printed or typed name of Witness #2]
_______________________________________ [Address of Witness #2, Line 1]
_______________________________________ [Address of Witness #2, Line 2]

_______________________________________ [Signature of Witness #3]
_______________________________________ [Printed or typed name of Witness #3]
_______________________________________ [Address of Witness #3, Line 1]
_______________________________________ [Address of Witness #3, Line 2]

SELF-PROVING AFFIDAVIT

State of New York
County of ________________

We, ___________________________________________________________________, ___________________________________________________________________, ___________________________________________________________________, and ___________________________________________________________________, the testator and the witnesses respectively, whose names are ***** ***** the attached instrument in those capacities, personally appearing before the undersigned authority and first being duly sworn, do hereby declare to the undersigned authority under penalty of perjury that the testator declared, signed, and executed the instrument as his/her last will; he/she signed it willingly or willingly directed another to sign for him/her; he/she executed it as his/her free and voluntary act for the purposes therein expressed; and each of the witnesses, at the request of the testator, in his or her hearing and presence, and in the presence of each other, signed the will as witness and that to the best of his or her knowledge the testator was at that time eighteen (18) years of age or older, of sound mind and under no constraint or undue influence.

_______________________________________ [Signature of Testator]
_______________________________________ [Printed or typed name of Testator]
_______________________________________ [Address of Testator, Line 1]
_______________________________________ [Address of Testator, Line 2]

_______________________________________ [Signature of Witness #1]
_______________________________________ [Printed or typed name of Witness #1]
_______________________________________ [Address of Witness #1, Line 1]
_______________________________________ [Address of Witness #1, Line 2]

_______________________________________ [Signature of Witness #2]
_______________________________________ [Printed or typed name of Witness #2]
_______________________________________ [Address of Witness #2, Line 1]
_______________________________________ [Address of Witness #2, Line 2]

_______________________________________ [Signature of Witness #3]
_______________________________________ [Printed or typed name of Witness #3]
_______________________________________ [Address of Witness #3, Line 1]
_______________________________________ [Address of Witness #3, Line 2]

Subscribed, sworn, and acknowledged before me, ______________________________________________________, a notary public, by ______________________________________________________, the testator, and by ______________________________________________________, ______________________________________________________, and ______________________________________________________, the witnesses, this ______________ day of ___________________________, 20_____.

[NOTARIAL SEAL]

______________________________________________________
Notary Public's Signature

My Commission Expires: ______________________________

This would allow you to will it anyone you choose here.

Customer: replied 3 months ago.
If you do a will to one child does it not need to go thru probate court? And how does the property get transferred to that child? and can the child transfer it to his entity or only to the name that's on the will?

It would go to simple probate.The executor signs fiduciary deed, it may be the same person deeding it to them selves and thats it.Child receives it by fiduciary deed from executor and that gives them title as part of probate.Prbate lawyer would prepare it for signature here.This is the best way to go if you want right to change mind.

Customer: replied 3 months ago.
If its thru a will it will still need to go to simple probate court right? Who is the executor ?

Whoever you name, could be your child or someone else you trust to carry it all out here.It would have to be probated all wills do.

Customer: replied 3 months ago.
The will needs to done by an attorney or the sample will you sent can just be signed and notarized?

The sample is a legal will just have non relatives witness and notarize, a bank can do it.

Customer: replied 3 months ago.
OK And once it transfers to the child what is the taxes the child will need to pay?

The estate tax limit federally is $5,490,00 and goes up lmost every year.No taxes here if it is under this amount.It would be tx free other than property taxes evey year once they own it.

Customer: replied 3 months ago.
The tax of 5490.00 is based on the value of the property how is it calculated?

$5,490,000 whatever taxable value is at time of death.The tax asessor would have that valuation.

Customer: replied 3 months ago.
If the property is assessed at 50,000 how much would be the income tax to the child when transferred to him?

There is no income or estate taxes.New owner pays property taxes each year thats all.Nothing else about this is taxable, they are a property owner and taxes each year, might to $3-$4k in property taxes.

Customer: replied 3 months ago.
If the property is in a LLC and the operating agreement says that it will transfer to this specific child when it cant be managed by the owner what is the process to transfer the LLC ownership to the child?

You could transfer the stock here to the child and then they own it.A stock transfer would accomplish this.

Customer: replied 3 months ago.
Its written in the operating agreement it only gets transferred when owner is not capable of managing it may be that at that time the owner wont be capable in making decisions how is the stock transferred?

You may need to amend the operating agreement if you need to have someone then able to transfer the stock transfer.You can amend the operating agreement to allow for this.

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