I have 2 properties that were quit claimed from my father to myself AND my father. I need to quit claim these back to him alone. I am concerned about probate versus capital gains at the time of his death. Unfortunately, I filed the original deeds. One is in Oakland County, One is in Pasco County Florida.
Preparing a quit claim deed (or two) can be done easily through an attorney. You can find a form online or otherwise for a QCD, but the relatively low cost to prepare deeds through an attorney makes it a great choice versus the risk of mistakes with a self-prepared deed. However, before you have the deeds prepared, you should consult with a qualified estate planning/probate attorney regarding all the options and potential tax implications. Attorney James Frederick is licensed in Michigan, is a regular contributor to this forum and would be an excellent choice.
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While you can do the deeds yourself and execute them and record them, I would recommend you slow down and discuss what you are trying to accomplish with a probate attorney. Also, the transfers to your father could cause reassessment of property taxes. Im assuming your estate is not great, so the gift tax implications dont really apply. Regardless, you would be wise to meet with an estate planning attorney first.
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Family Law Attorney
Yes you can, but as Attorney Dupler pointed out, it is worth having an attorney prepare the deeds to make sure they are done correctly. You should also consult with an estate planning attorney to discuss your concerns as it may not be necessary to quit claim the property at all to achieve your estate planning goals.
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Depending on how this was done, there may be no capital gains at death. You should have your deeds reviewed by an attorney. We usually recommend lady bird deeds, to avoid tax concerns like this.
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Estate Planning Attorney
Your Father should consult with an experienced estate planning attorney in the state where he lives about the benefits of creating a living trust and putting the property in the trust so it will avoid probate at the time of his death. That attorney can, also, discuss how you can get a stepped-up basis at the time of his death, which will avoid capital gains tax.
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Doing something like preparing and filing deeds is easy. Thinking through the implications of filing the deeds is not. This is why you (actually your father) need an expert, an estate planning lawyer, to review all his estate planning, not just these two deeds. It will cost much less now to correct problems than it will after your father dies.
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State, Local, and Municipal Law Attorney
I agree with fellow counsel. I am often asked the question of whether the client can prepare a Qui9t Claim Deed. My response is, yes, just like you can remove your own appendix but i wouldn't do it without a doctor. You need competent legal counsel. There are numerous tax and estate consequences involved in preparing deeds and to try to do so without an attorney will bring you many problems.
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Real Estate Attorney
My response relates only to the property in Michigan. A Florida attorney must respond regarding the Florida property.
You can prepare a deed yourself although it is not recommended because there are potential pitfalls that exist. I would have to see how the Property is currently titled, but the properties may not be included in probate if the Property is titled jointly with rights of full survivorship. If properly titled, the Property will avoid probate. If the property was titled to your father alone, there would be a stepped up basis upon his death and the beneficiaries basis would be the value of the property at the date of death. Please bear in mind that transfers between you and your father may result in an uncapping or partial uncapping that may result in increased property taxes.
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