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Patrick D. Newton
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Patrick Newton’s Answers

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  • Will and lifetime rights

    If my husband signed over his lifetime rights without me knowing will a will save my interest at his death? He signed over the whole 97 acres we live on. In his will I'm to get the house and I think about 60 acres. Am I safe?

    Patrick’s Answer

    You might have inchoate rights in the property. Additional information is needed, such as, how was the property titled before he signed over lifetime rights?, do you have a prenup?, how long have you been married? In short, as is often the answer on here, you should discuss this with your own lawyer. In fact, without looking at the deed that he signed in which he "signed over his lifetime rights", it is impossible to know exactly what rights he had, and what rights he signed over, and for what duration, let alone, what rights you had.

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  • Can the executor of an estate sell the property without consent of the other heirs?

    My oldest brother and I were named executors of the estate and he is now deceased, leaving me as the only executor. There are five living heirs and one of them does not want to sell. Can I sell the property as long as the money is divided equall...

    Patrick’s Answer

    Because there are general rules and exceptions, you definitely should consult a lawyer. That being said . . .

    Real Estate typically cannot be sold by the Executor unless it is, with a Court Order, brought into the estate to pay debts. There are exceptions, and they would have to be explicitly stated in the Will.

    All other types of property typically can be sold by the Executor unilaterally. Again, unless provisions in the Will prohibit it.

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  • I am the only child and Executor in mother's will. My daughter gets house; I get the rest which I want to go to my daughter. Can

    Can I put stocks, etc. in my daughter's name? I have no need for the cash/investment assets and I know my mother would want her granddaughter to have them. As Executrix can I have these assets put in my daughter's name even though they are suppose...

    Patrick’s Answer

    As you can see from the other answers, yes, you can transfer assets to your daughter. One option is a qualified disclaimer. This can be tricky, so do get an attorney to analyze that option before proceeding.

    Another option would be to simply receive the inheritance, and then gift the assets to your daughter. This option can be attractive if you feel fairly certain that gift and estate taxes are not in your future. Each person currently has a $5.34 million "coupon" against gift and estate taxes (married couples get twice that). If your net worth is such that exceeding $5.34 million is not in the cards for you, then this option can be used without much risk of taxes. You would need to file a gift tax return to report the gift. This option also opens up additional options on how to structure the gift to your daughter: Outright, Beneficiary Controlled Trust, Restricted Trust, etc.

    Final thought: While I am not doubting your reasons, it is possible a person would look to disclaim an inheritance to avoid having to use inherited assets to pay debts. You don't want to move forward with either option without competent legal advice if this is an issue.

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  • Is the debt to the bank subject to being paid by life insurance policies once the owner is deceased?

    There is an equity load remaining on the farm in North Carolina which my stepmother was supposed to use insurance policies to pay off the mortgage however she gave her children all of the cash proceeds from the policies. Now she is in a nursing ho...

    Patrick’s Answer

    She likely had no requirement to pay off the remaining mortgage with the life insurance proceeds, however, as a co-debtor, the bank might have a fraudulent conveyance claim if she defaults having made a gift of the insurance proceeds. The debt is a lien on the property, so payment would still have to be made after her death. You are not now responsible to pay the loan, but of course if no one pays it, it will be foreclosed on. I would be certain that the property goes to you at her death before making any payments, otherwise you may be just throwing away money.

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  • Have an estate planning question. Am attorney. Have a client who is a US Citizen. She has a same sex partner in Canada.

    Partner is a resident of Canada. Client owns property in NC, votes in NC, has family in NC and plans on returning to NC at some point. She divides her time between working in Canada and NC. (1) is client a resident of NC such that she can make...

    Patrick’s Answer

    Yes, "Client" can make a Will in NC. Is she paying taxes in NC? Sounds like she should be.

    Any US citizen or resident can give anyone in the world up to $5.34 million (total aggregate transfers) right now without gift or estate tax. So it sounds like for your situation there will be no transfer tax owed, but a gift tax return would need to be filed to report the gift if a gift is made in excess of $14,000. An estate tax return would only need to be filed if the estate exceeds $5.34 million.

    One bit of trouble that unmarried partners can get into is transferring assets back and forth between them multiple times during their lifetimes. Each time there is a transfer, it could eat into the $5.34 million exemption. For instance, client gives partner $50,000. Then Partner gives client $50,000. Then client gives partner $50,000...and so on. If this is done ten times, then client has burned up $500,000 of gift and estate tax exemption (ignoring the annual exclusion for the moment).

    You have a variety of other issues as well, such as, what are Canada's rules on inheritances for minors and whether to place assets into a trust. You shoud consult an attorney in Canada.

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  • How can i revoke a power of attorney

    did power of attorney with an online form

    Patrick’s Answer

    If it has not been recorded with the Register of Deeds, a power of attorney can be revoked simply by destroying it, or be executing a new one.

    However, if any third party has relied on the power of attorney, they could still do so until they are made aware of the revocation.

    If the power of attorney has been recorded, then you should exucute a document indicating that the power of attorney is revoked and record that document.

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  • What is the procedure for catching up on back taxes owed

    i owe about 20k in back taxes..i havent filed in 4 years...i would like to start to get this taken care of,at least file years i havent.but,i have no money to pay to have taxes filed.

    Patrick’s Answer

    This answer does not create an attorney-client relationship. FInd the money and get the returns prepared. Then file them. Then prepare to file an Offer in Compromise. You may want to go ahead and file for the Offer in Compromise, or you may want to wait, depending on your situation. If you wait, don't wait until the IRS starts taking your property!!! You will get IRS Notices in advance of any taking.

    An attorney familiar with the Offer in Compromise program should be able to assist you. I would stay far away from the OIC companies that advertise nationally.

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  • Estate planning

    Will I get the house if my husband dies and it is in his name only?

    Patrick’s Answer

    Maybe. It depends on a lot of things. Here in NC, it would depend on whether there is a Will. If so, it would go how the Will goes. If not, it goes by "intestacy," which means essentially it passes to whomever the state law says it goes to. Here in NC, that could be spouse alone, split betweeen spouse and parents or a split between spouse and children. Essentially, here in NC, if there is a parent OR a child living, then the spouse only gets a portion of the house (or other asset) if there is no Will.

    I recommend you and he get Wills done, or if appropriate, Living Trusts. You need to actually talk to someone in your state that handles estate planning.

    Hope this was helpful.

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  • Keeping Inherited Money as a Non Marital Asset while paying income taxes while married

    At the beginning of this year my father passed away. I am the sole beneficiary of life insurance policies, 401 K plans, checking and saving accounts, and stocks. I am a married woman. It has come to the point that I will be required to take a m...

    Patrick’s Answer

    This answer does not create an atttorney-client relationship.

    The distribution is likely 100% taxable income, exceptions would be for nondeductible contributions or if it was a Roth 401K, neither of which are likely. To keep the funds as separate property, merely keep the assets in a separate account in your name only. The filing of a joint tax return will not affect that.

    You should locate a IRA Beneficiary calculator (such as http://www.bankrate.com/brm/calculators/retirement/ira_beneficiary_calculator.asp) to help you determine whether the tax deferral created by taking only RMDs is preferable to a lump sum.

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  • Will my "bad credit" affect my fiances credit once we are married

    My fiance and I are getting married in Sept 2009. He has EXCELLANT credit. Mine is not good or bad-I have a lot of debt, but ALWAYS pay my bills on time even though it is just the minimum(I have taken steps w/the cc companies to reduce my intere...

    Patrick’s Answer

    Your credit ratings will not affect each other unless you are co-borrowers on a loan.

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