Legal Question in Real Estate Law in New Jersey

Re: deed

"Starting to have health problems" is not fully descriptive, but I assume she is still mentally competent to make legal, property and health care decisions.

New Jersey law may cover aspects of this; I am a California-licensed lawyer and cannot advise you except as to California's laws. However, most US states honor wills and trusts according to the laws of the state where the trustor or testator (your mother) was located when the instrument was prepared.

Your safest bet is both to visit with an attorney who specializes in estate planning. You have several issues to talk to the planner (and each other) about while your mom is still of sound mind and decent health, including:

(1) Health care, including whether you both want a durable power of attorney covering health care;

(2) Avoiding a probate that would involve two states, CA as her residence and NJ because of the real property there;

(3) Minimizing estate and gift taxes;

(4) Preparing a trust and companion pour-over will to make life simpler for the prospective executrix (you?)/

(5) Taking a defensive posture through insurance or whatever against possible long-term health care costs taxable to your mother's assets or estate by MediCal or whomever.

Clearing your father's name from the deed probably will be straightforward and cheap, but it's an NJ law issue.

Using a quitclaim deed seems to be everyone's "quick and dirty" answer to property-ownership problems these days. There may be estate and gift tax reasons NOT to transfer the NJ property before death, however. I strongly advise you to have a tax or estate specialist run the numbers for your mom and you before you try a quitclaim solution. You may save big bucks on net balance.

So, my hunch is that a living trust will be best for both of you, but there are no cookie-cutter solutions and a pro should look at your numbers and family situation and customize a plan.

Re: deed

Estate planning... Well, I would recommend a trust with a pour over will. It is a simple instrument that allows the property to pass to you outside of probate. I can do this for you and because I do these types of trusts frequently, my rates are very fair. You may contact me at 310-266-4115 or via email at [email protected]

Re: deed

You should be concerned with passing the property, keeping mom medicaid/mediCal eligible if she needs long term care, having an advanced health care directive, living trust, etc. This need not cost you more than $400-600 at this point to get this set up. You do not want to quitclaim the property. There are adverse income tax consequences to that and it will require the filing of gift tax returns. I am assuming that your mom and dad owned the property as joint tenants with rights of survivorship often called "tenants by the entirety" in common law states like New Jersey. If so you will only need a copy of his death certificate to deal with that issue.

Re: deed

You do not provide a value for the house, nor what will happen to it when your mom moves, so a general answer will be given. If you were put on the Deed now, you will have received a gift from her, with your cost basis (for determining gain/loss when ultimately sold) being your parents' original cost plus any improvements made over their years of ownership. If the house was inherited from your mom, your cost basis would be the value at her date of death (presumably much larger). When sold, the difference between your cost basis and the net sales price becomes the number that determines gain/loss. If your mom were to sell the house during her lifetime (within 3 years of moving), the first $250,000 of profit is not subject to tax, so there is an advantage to her retaining title. My suggestion is to have her make a new Deed (I can assist you with this) adding your name (for some nominal interest like a 5% ownership) but have the Deed read you and her as joint tenants with right of survivorship. Thus, you would automatically inherit her 95% interest on her death (with a 95% date of value + 5% carryover basis) as your cost basis when it is sold. Your name on the Deed now, as JTWROS will eliminate the need for a Will or a probate in NJ on her death.