Legal Question in Real Estate Law in California

The deed to my home is under my name only; if I quit claim the house to include myself and my daughters, in the event of my death would they be able to sell it, payoff the mortgage and split the remaining funds without paying taxes on their shares?


Asked on 11/10/09, 8:30 pm

2 Answers from Attorneys

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

Yes, except for the part about taxes, and a big NO with respect to that.

If you quitclaim the house from yourself as sole owner to yourself and your daughters as joint tenants, your daughters will, upon your passing, become the sole owners and able to sell the house, but they will have to pay capital gains tax on the full difference between what you paid for it (assuming you aren't charging them anything for it). The capital gains tax rate is currently 15% and likely to be raised. So, if the house were to sell for $400,000 and it cost you $75,000, the tax would be $48,750 (or more). You might also owe some gift tax.

On the other hand, if they inherit from you by will or via a living trust, your daughters' taxable gain will be only the gain between the date of your death and the date of sale, which could be small, perhaps zero if they sell right away.

As between a will and a trust, the trust has the advantage of passing trust property without it being subject to probate.

My advice is to see a local attorney who specializes in estate planning, and assuming your situation is not unusual in some respect, have a living trust drawn up and funded. Costs a lot less than unnecessarily paying capital gains on appreciated property.

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Answered on 11/15/09, 8:56 pm

I agree with Mr. Whipple that what you are proposing could have big tax consequences you probably do not want to face. I would add that alternatively to taking a capital gains hit based on your original basis, the IRS could treat the deed as a gift made at the time, resulting in gift tax due immediately. Of course if the house has not appreciated significantly since you bought it, these issues go away and what you are proposing can be a simple and effective way to avoid the trouble and expense of a trust and/or probate. As a general rule, using a deed jointly to family members is only useful if done at or near the time you acquire the property, so that there is no meaningful appreciation to deal with.

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Answered on 11/16/09, 12:15 pm


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