Legal Question in Real Estate Law in Texas
Refusal to sign will - Inheritance Tax Issue
A family friend is getting up there in age and refuses to sign a will. She has four children, all of whom will be left with a $1.M+ Inheritance Tax. She has fired several lawyers because she did not like the answer they gave (they told her to make a will.) The estates value is substantial and the inheritors obviously don't want to sell the property simply to cover the inhertance tax. Is there anything they can do NOW, since she won't sign a will, that will allow them to take some tentative bids on the property and prepare (NOT execute) a bank loan on that information, all under the stipulation of the owners passing? I know it sounds almost morbid, but she refuses to write a will and the family members involved will be stuck holding the inheritance tax. Just looking for some pre-emptive actions that will protect them.
3 Answers from Attorneys
Re: Refusal to sign will - Inheritance Tax Issue
Considering that the estate tax exclusion for individuals who die in 2009 is $3.5 million (and in 2010, unlimited; after that, the exclusion amount is to be determined), an estate worth $1 million would not be subject to inheritance tax.
The potential beneficiaries do not have legal title, and they cannot encumber the property. No lender in their right mind would let them do it either.
The concern should be the cost to probate, rather than inheritance tax. Mom needs a trust, not just a will.
Re: Refusal to sign will - Inheritance Tax Issue
I wanted to clarify regarding the exemption for 2010 with recent developments.
According to the Planned Giving website:
Last week the Senate passed a fiscal 2010 budget resolution that
includes an amendment that would increase the federal estate tax
exemption to $5 million, indexed for inflation, and cap the maximum
estate tax bracket at 35%.
Amdt. No. 873 to S. Con. Res. 13
Re: Refusal to sign will - Inheritance Tax Issue
I often have to explain to potential heirs that, unless mom is incompetent, she makes her own decisions and has the right to take action...or not. Additionally, if heirs want to sell property NOW, they may be giving up the stepped-up basis in the property they get upon inheritance, thus, will pay additional capital gains taxes at time of sale. A consultation with a Texas lawyer might ease concerns. Dying without a will isn't horrible (unless intestacy distribution goes against the decedent's wishes) and probate is inexpensive in Texas.
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