Legal Question in Real Estate Law in California

A very close friend for over 30 years recently lost her husband and wants to leave me her home when she passes. It was also her husbands wish for me to have the home. She has recently moved out of the home becuase it is too much work for her and would like me to rent the home and then it will be left to me at her death. The home is in Califonia and she now lives in Arizona. She is doing a trust now to leave the house to me at death as well as half of the estate. The house is paid for with no debt or loans of any kind. What is the best way to do this and protect myself. Is there a lease to own that says I pay rent for a determined amount of years and upon her death the house is now paid for and owned by me?


Asked on 12/21/13, 7:41 am

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Sure, documents of the kind you describe (lease-to-purchase, rent-to-own, etc. etc.) are used from time to time and certainly could be customized to accomplish what you're thinking of.

However, why bother? You say you'll be getting the home via your friend's trust when she passes away. This is probably better and simpler than using a lease-to-own, since property acquired by inheritance (i.e., by will or trust) receives a step-up in basis and you'll avoid a pile of capital-gains tax and perhaps some gift or inheritance tax. If you want use of the home in the meanwhile, sure, by all means lease it from your close friend -- but use a conventional lease, not one that appears to transfer ownership or any unusual rights.

Of course, there's some risk to you that if your documents don't force your friend to leave you the home, that she'll change her mind, or need to encumber or sell the property before she passes away. That's a risk you need to weigh, and look at it from your friend's viewpoint as well. What if she needs this asset, for example, to pay for health care?

Finally, whatever you do, remember that the tax aspects (federal and state capital gains, gift, inheritance and local property taxes) are a very important factor and can swing by tens or hundreds of thousands of dollars either way depending upon how you come into ownership. Get sound tax advice from a tax planner or CPA.

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Answered on 12/21/13, 10:22 am


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