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James Oberholtzer
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James Oberholtzer’s Answers

420 total


  • The Last name on my Birth Certificate is different than the one on my Social Security Card. I would like to have my BC changed.

    I was not issued a Social Security Card at my birth in 1977. 2 years after my birth my mother got a divorce. About 2-3 years after that she remarried, and at the SS office, they issued my card with my stepfathers last name at my 5 year old reque...

    James’s Answer

    This is not a tax question. I will change it to family law. Those folks deal with this more often. I imagine that it has to do with whether there is an existing court order changing your name. It not, you may have a file an action for a legal name change.

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  • Is there any good tax attorneys in or around Portland oregon area

    I assume I need a good tax attorney in order to file my taxes since I have neglected to file for an extended period of time I would not even know where to start getting the required documentation needed short of the irs and after not filing for cl...

    James’s Answer

    Get started now. The statute of limitations does not begin to run on your taxes for past years until you file the return. If you had filed the returns for these years in the past even if you had not paid the taxes, many of them would be closed now. Until you file the returns, the IRS can pursue you and your estate forever.
    The first step to filing the returns is gathering the information for income and expenses. If you do not have the information, you can get a transcript from the IRS of what their records say.

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  • Can my dad go onto a property owned by him and my mother when she says he cannot and has mailed him a notarized paper saying so?

    My parents got divorced while my dad was in prison and my mom says he cannot go onto the property without her permission. The notarized letter she sent is all she has done other than make a formal complaint to the police. There is no restraining o...

    James’s Answer

    In general, a co-owner of an undivided interest in real estate has an equal right to occupy the entire property. However, your situation does not sound usual. This result can be altered by agreement between the parties, by statute and by court order.
    It will take an attorney quite some time to give an opinion about who has rights and duties in your situation.

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  • In a quit claim deed, "The true consideration for this conveyance is $" .. is the dollar amount the value of the home or buyout?

    I am in the process of buying out a friend on a property we went in on but wasn't sure if I put the appraisal of the home here or how much I am providing for the removal of her from the title or simply leave it blank?

    James’s Answer

    It is the amount you are paying for the interest being conveyed to you. Include the amount of a promissory note that you are giving along with the amount of cash.

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  • Can we switch homes with our daughter. Put our names on each others title then refinance.

    Our daughter recently bought a new home and it's to much for her to afford. Both homes have a mortgage. We would like to switch homes with her since we owe much less and that would make it affordable to her. We would prefer to do a refinance as it...

    James’s Answer

    Great question. An exchange is a taxable transaction. A double sale. Both parties recognize gain or loss depending on whether the property has increased in value since you bought it. Since both parties are using the real estate as their primary residences, it is possible that both parties can claim the income exclusion upon the sale of a primary residence under IRC Section 121.
    Check and see if both your daughter and you qualify for the income exclusion. If so, Section 121 excludes $250,000 of gain for your daughter and $500,000 of gain for you and your wife.

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  • Real estate contract

    l had a house that was listed "as-is" , the contracr was signed by both parties and closing was doon. They had a house inspection and sent an addendum for $2500 less than what was price l signed for else no sale. Because house was listed "as-is" ...

    James’s Answer

    The terms of the written contract control the transaction. In most contracts the house inspection is a condition of closing the sale. If that is the case here, then they buyer is within their rights to ask for a concession or cancel the sale.
    There may be other requirements in the contract that have not been met that would alter this result. You should consult with an attorney familiar with Oregon law for a thorough review and to obtain legal advice.

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  • Lawyer has provided a draft of a couple of estate planning documents but is vague on follow up.

    A lawyer that I chose to draw up my estate plan, not a very complicated one, has provided mw with drafts of the 2 trusts, again, not complicated. I asked where the other documents as in pour over will and advanced directive were and he said that i...

    James’s Answer

    Your relationship with your estate planning legal counsel is voluntary. Any time it is not working for you, you can terminate it and move on. Like most relationships, it usually makes sense to communicate and try to work it out first. Tell the attorney your concerns and let the attorney respond. Even if you decide to terminate the relationship, you will have learned something useful.
    It is a harder question to determine how much you should pay, if at all. If the attorney did professional quality work, the attorney is entitled to be paid for it. If not, then the attorney is not entitled to be paid. It may be difficult for you to evaluate if the work was professional quality or how much it is worth. The only way to find out is to hire another attorney to advise you. Often this is not worth the cost involved.
    One way forward is to negotiate with the attorney about it. Most attorneys would rather have you leave with a sense of fairness than get the last dollar out of the work they have done. It may be that you can come to an agreement.

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  • What are the required legal documents for the private sale of a home?

    The property is co-owned. One owner is buying out the other. No Realtors involved to manage the process.

    James’s Answer

    These intra-owner transactions can be tricky. They may seem like a gift but involve money and title. The absence of realtors saves money but you lose their experience and expertise.
    It is important to make sure that the buyer is covered by title insurance in case their are any title defects or easements on the property that are unknown.
    If the buyer is not intimately familiar with the physical condition of the property, a professional inspection should be taken.
    In general, the buyer should get all of the promises (aka covenants) and warranties that a buyer in an arms length transaction gets.
    that requires a Purchase and Sale Agreement and Seller Disclosure Statements. They buyer will also want to get a Warranty Deed (not a Quit Claim Deed), a Bill of Sale for the personal property and an Affidavit of Title that the title is free of defects.
    All together, the buyer should hire an attorney to make sure all of this happens and to look closely at the situation to see what else needs to done.

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  • I am a beneficiary on a living trust in Oregon, but I am not a trustee. Do I have any legal rights to read the living trust?

    and how would I make the trustee let me read it?

    James’s Answer

    There are two ways you can have a right to a copy of the trust agreement. First, the trust agreement itself can give you a right to a copy. Second, under Oregon Trust statute ORS 130.710 a qualified beneficiary is entitled to a copy of the trust agreement.
    (14) “Qualified beneficiary” means a beneficiary who:
    (a) Is a permissible distributee on the date the beneficiary’s qualification is determined;
    (b) Would be a permissible distributee if the interests of all permissible distributees described in paragraph (a) of this subsection terminated on the date the beneficiary’s qualification is determined; or
    (c) Would be a permissible distributee if the trust terminated on the date the beneficiary’s qualification is determined.
    Also, a beneficiary of an irrevocable trust is entitled to a copy of the trust.

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  • Oregon Small Estates: Intestate or Testate?

    My brother passed away and had very few possessions - some derelict vehicles and a small, vacant piece of land in the Central Oregon desert. My father has a photocopy of a will (but not the original) naming him as Executor and sole beneficiary of...

    James’s Answer

    As my colleagues have said, it depends on what the Will says. However, if it was drafted by an attorney, I can take an educated guess that it at least waives the bond for the executor. This saves you some money. The amount of the bond is a function of the non-real estate assets in the estate. There may be some other provisions in the Will that save you money or effort. If you can find the original Will, the administration will be easier.
    However, you are right. As far as the administration of the estate goes, there is not that much difference between the testate and intestate administration.
    You did not ask, but, why are you bothering with a probate estate? The few possession can probably be handled informally. the cars are probably worthless and the land can be handled with an affidavit with the title company whenever you get around to selling it. Just saying.

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