Legal Question in Wills and Trusts in California

Joint Tenancy - Details

I was on title as joint tenants with my parents, but now I'm on title as joint tenants w/just my mom (who is about 80). She has said o.k. to gifting over the other half of the joint tenancy to me. if she goes ahead and does this...

Question:

#1. Can the gifting or deeding over of the other part of the property be contested?

#2. I do not have nor want to have ''financial power of atttorney'' for my mom other assests (savings, etc.), but if someone else has or gets power of attorney (be it a friend or family member), can they quit claim or somehow transfer over her half of the joint tenancy property to themselves, or to a trust for my mom?


Asked on 4/10/06, 1:53 pm

1 Answer from Attorneys
Donald Field Donald L. Field, Jr., Attorney at Law

Re: Joint Tenancy - Details

as long as your mother is competent the transfer of her joint tenancy interest to you would be valid if the necessary formalities are observed. keep in mind that you may have to prove her competency at some time in the future if the transfer is contested.

you should also be aware that any such transfer is potentially subject to federal gift tax and a federal gift tax return may need to be filed.

also you should be aware that lifetime gifts result in a carryover basis for calculation of gain on sale, whereas transfers at death receive a step-up in basis to the value at the date of death (or an alternate valuation date).

anyone holding a valid durable power of attorney or properly acting as trustee of any trust can transfer assets subject to the power or held by the trust. this why it is essential that only able and trustworthy individuals be named as attorneys-in-fact or as trustees.

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Answered on 4/17/06, 1:41 pm


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