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James Oberholtzer

James Oberholtzer’s Answers

445 total

  • Oregon - buying condo from sons of deceased owner.

    Oregon - Multnomah County. I am interested in buying a condo listed for sale. Tax records list a woman as owner who died just 2 months ago. Real estate agent on seller side wanted to change seller from her name to th...

    James’s Answer

    You are right to be cautious. When you say the tax records show a woman to be the owner, you are talking about a secondary source of information. The official record is in the recorder of deeds. If the decedent woman was the record owner then the issue arises whether she left a Will. The Will would determine who can sell the property. The Will would have to go through probate. In the probate process, the creditors of the decedent get paid first.
    If she did not leave a Will, the property will still need to go through a probate process.
    You can still sign a contract with the sons, just make it subject to probate court approval. and be ready for the deal to possibly go sideways. Be very careful about what happens to your earnest money. In other words, hire an attorney and get advice before doing anything.

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  • Would a quit claim be appropriate for this situation?

    I have a home. One-half of the land is free and clear and has a rental on it. The other half is mortgaged. Both pieces have separate tax account numbers and separate legal descriptions that were obtained about 10 years ago when I obtained a mor...

    James’s Answer

    Yes, a quitclaim deed will work. One of the dangers of a quitclaim deed is that it lacks warranties of title. If a claim were made that the title in the LLC was defective in some way, you would have a problem making a claim on the title insurance from when you bought it. You could resolve this problem by buying a separate title policy naming the LLC. the cost would be minimal. then it would not matter which form of Deed you used.
    An obvious question would be why use the Quitclaim Deed in the first place? I can't imagine. But the title insurance is a generally recommended way to protect yourself at a low cost either way.

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  • Probate Avoidance Trust.

    Hello, My grandfather made a Revocable Living Trust. At his death, I am now named Sole Trustee. I am also one of the succeasor beneficiaries of the trust. There is one other beneficiary. The Trust says the share of the other beneficiary is to b...

    James’s Answer

    I agree with my colleague. You must read the entire trust to understand your duties. However, there is also law outside the trust that controls what you can or must do. Part of this law is the law of fiduciary duties. As trustee, you must put the beneficiary's interests above your own. As a trustee and a beneficiary, you have a built in conflict of interest.
    this is not unusual, but you must be very careful to follow the trust's instructions and treat the other beneficiary fairly.

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  • Does a parent working as my household employee have to pay taxes and file tax return?

    My parent works for me as household employee. His wages are $ 15000 a year in CASH. Does he have to pay taxes and file tax return? If Yes, how will the process of withholding federal/state, social security, medicare taxes work for me and him? Any ...

    James’s Answer

    My colleague is correct. the answer to your question is yes. He does have to pay taxes and file an income tax return.
    You register with the Oregon Dept of Revenue as an employer and get an Oregon Business ID. You also need a federal FEIN. You can get that online at the IRS.
    You withhold a set amount from each paycheck for US income taxes, Oregon income taxes and the employee portions of Soc Security (FICA) and Medicare. The federal withholding you pay to the federal government through EFTPS online service. The payment is due on the 15th day of the month following the month of the paychecks. The Oregon you pay once a quarter when you file a quarterly report with the Oregon Dept of Revenue.
    A basic question is why you employ your parent as a household employee and cause all these taxes to be paid? Many families just take care of their parents and the parents help around the house. No payments and no taxes. Would this work for you?

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  • Can forming an LLC help me break a lease?

    I want to sign a lease on a commercial property, but it's a little longer than I am comfortable with. In the event that I am not able to keep my lease, I do not want the landlord to sue me. If I was to form an LLC and sign the lease as a represent...

    James’s Answer

    Your plan to use an LLC to limit your personal liability for a lease could work. However, you have to do everything exactly right (turn square corners) legally and find a credulous landlord. Most landlords are aware of this plan and will stop it by requiring a personal guaranty.

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  • Can we temporarily live in a motor home on our property while building?

    We have already built a huge shop and have acreage. Fire department coming soon to burn an old house down so we can build new home. We have a very nice motor home, can we live in it till we get our house built? We have already put in a dump t...

    James’s Answer

    In general, you start with the proposition that you can do what you want on your own land. However, there are many exceptions that you need to check:
    1. City/County zoning;
    2. Neighborhood restrictions;
    3. Private covenants that run with the land;
    4. Nuisance laws.

    In addition, it would be a good idea to check with your neighbors and make sure they are OK with it.

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  • Starting A Trucking Company: Independent Contractor Or Employee?

    Hello: My business partner and myself are considering starting a trucking company. Our trucking company will be an LLC and the trucking company will own all of the trucks. The plan calls for us to have independent contractors who are truc...

    James’s Answer

    Congrats on your plan to start a new business. My first recommendation is that you put the time into writing a formal business plan. It will save you much expense and stress down the road.
    It is not so easy to have your truckers recognized as independent contractors. The IRS is very suspicious of this treatment. It is an involved analysis of 15 factors. Get an opinion in writing from a tax attorney or tax CPA. that will give you some comfort if the IRS disagrees and assesses penalties and interest. It can be a very expensive mistake.
    As part of your business plan, you can identify all of the risks and liabilities. Some you can get insurance for; others will be on your heads.
    Good luck!

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  • How much is a lawyer hired by the morgage company usually

    our home was sent to an attorney on or around sept 12th we were just denied a modification on 10-29-15 we can pay the past due amount as well as attorney fees but do not no what attorney fees are can you give us an estimate ?

    James’s Answer

    I think a few words got left out of your question. I can guess you want an estimate of what the attorney will charge. It is usually based on how much work the attorney has done. If no lawsuit has been prepared or filed, it would usually be between $1,500 and $2,500.
    The best approach is to ask. Get the attorney's email address and put your offer in writing.
    There may be better strategies for your situation that save you more money and get you what you want. I can't tell from this short description.
    Hire an attorney to look into your situation and give you advice.

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  • Bought a house on a short sale. The bank agreed to give us the insurance check for stolen items but after closing they refused.

    We bought a house on short sale. Some items were stolen while it was still on the market. The owner turned the insurance check over to the bank. In an email from their realtor they agreed to give us the check to replace the stolen items. After the...

    James’s Answer

    Yes, you probably do have recourse. Real Estate brokers are agents for the buyer and seller. Unless you received notice that the seller bank would not be bound by the acts or statements of its agent broker, then they are required to live up to the agreement.

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  • LLC Question. If I have two members, but only one gets paid, will the other one still have to report our revenue as income?

    I have two members in my LLC. Only one will receive paychecks. Will the non-paid member still need to report our revenue as income on their taxes, because they're a member?

    James’s Answer

    Yes, this is a classic problem. If one person is getting paid because they do work for the LLC, they are supposed to be paid compensation as an employee. The IRS will view any other arrangement as a method to evade employment taxes.
    If no one does any work for the LLC, then the payment must be a distribution preference in the return on capital. the preference should be expressed in the LLC Operating Agreement. If that is the case, then the section in the LLC Operating Agreement that describes the tax accounting should also allocate the income to the person receiving the cash. Note: these allocations must have "substantial economic effect" so must be drafted with care to avoid a tax train wreck.
    You are in a complex tax area and should consult a good tax attorney.

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