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James Oberholtzer
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James Oberholtzer’s Answers

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  • Fiancé visa adjustment of status

    I recently filed a petition for for a k-1 fiancé visa. At the interview, my fiancée was required to provide my tax return from last year (as proof of income). I did no file last year, as I was in college full time and did not work, therefore I was...

    James’s Answer

    It would usually be way less expensive to just file the zero income tax returns for the past years. It also has the benefit of starting the statute of limitations for those years and lowers your audit risk.

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  • Can someone with a life estate be evicted?

    My step grandmother is now 95 years old and living in the home that belong to my grandpa who just recently passed. She is currently fighting with some family members over property that should've been disbursed to other people based on the will (i...

    James’s Answer

    There are well established ways to compel a life tenant to keep up the property or is she does not, the remainder interests can step in and do it.
    You need to be clear in the legal basis for your interests Are they in law or equity? As in "are they in a deed directly to you? or "are they in a trust?".
    You will need a lawyer to assist you in enforcing your rights.

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  • Do I need to pay "Gifting Tax" for a house transferred back into my name even though I purchased it?

    I bought a house with my brother. We refinanced and took my name off for the process, then he passed away.My father was next of kin so its now in his name. We want to put it back into my name but are worried I will end up having to pay a gifting t...

    James’s Answer

    Unless your estate is more than $5.4 million ($10.8 with a spouse), it is not really a problem. Oregon does not have a state gift tax.
    There is a federal gift tax. The personal exemption amounts are listed in my first sentence.
    If you give more than $14,000 a year to anyone, you are supposed to file a federal gift tax return. Not a big deal. Short form. Easy to do. You may need an appraisal. If you move quickly, you can use the one you got for the estate.

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  • OR Revenue turned my simple error into accusation of underpayment -- already threatening garnishment for tax I don’t owe!

    Traveling June&July, I had mail forwarded... 3wk-old letter from OR Revenue: they doubled my taxes 'cuz I filled the wrong line on my Form40. I had 1 day left to reply. Sent 3 copies of explanation of my simple error,postmarked on the deadline dat...

    James’s Answer

    usually the best course is to simply call the ODOR and talk with them about it. If that does not work, pay the demanded amount and file the amended return immediately.

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  • Can I file a breach of fiduciary duty on my Aunt who is not taking care of my deceased Grandmothers trust on my own

    My Aunt has not done anything in 3 years on my Grandmothers trust since she passed away, except, she took her mobile home which was titled in the trust which is not real prop here in Oregon, used her personal rep papers and put the title in her na...

    James’s Answer

    Yes, you can file on your own without an attorney. It will eventually create problems for her. She will have to account to the court for her actions.
    It also will create a host of problems for you. It is work to run a lawsuit. You will have to do all of the work. It will require that you think critically, read a lot of law books, keep your thoughts, facts and ideas very organized, ask calm neutral questions and take in what others are telling you. Most people find it very difficult and frustrating when it does not work the way that makes sense to you.
    You may want to approach the legal aid office or law school clinic in your area. They can sometimes help in this type of case for little cost to you.

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  • How to transfer a real property into and out of sub-trusts of a basic revocable shared living trust.

    Consider a basic shared living trust whose trustees are X and Y. When one spouse dies first, the trust creates two sub-trusts Trust #1 and Trust #2. Trust #1 is irrevocable and for immediate distribution to beneficiaries, and Trust #2 is revocable...

    James’s Answer

    You are describing a Joint Trust. Very popular in community property states like California or Washington. Not really necessary in Oregon.
    You are asking a good question.
    Unfortunately, the answer depends on a couple things:
    1. Was the property already transferred from the original trust to the subtrusts? N.B. you want the title chain to be connected.
    2. What does the Trust Agreement say about the names of the subtrusts? if the property in the initial trust was transferred to the name of the subtrusts, use the same subtrust name to distribute.
    3. What was stated on any tax elections or tax returns? Use the same names, be consistent. N.B. the reporting of any income generated by the property.
    4. What is stated in the books and records of the trust administration? Again, be consistent.
    5. What was reported to a court or the beneficiaries? Again, be consistent.

    2.

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  • My ex will not give me back my property that I am financing in my name. What legal rights do I have?

    I have proof that the property is mine, there is still $600 owed on it. He said he will not give it back and I am still making the payments. I still have a key to the apartment but am no longer on the lease. What legal rights do I have to get my p...

    James’s Answer

    If the ownership of the property is registered with the State of Oregon then you will need your ex's consent to change the registration. If it is not registered, possession of the property is the most significant fact about its ownership.
    If you are not a tenant under the lease and you have no other agreements written or otherwise to enter the property, you generally have no legal right to enter the property to take back your property. There are exceptions to this for safety or to rescue a living thing.
    You can file a small claims court complaint to obtain a court judgment of your ownership and then force your ex to turn it over to you. However, it is expensive and can go wrong along the way.
    Best course, get a mutual friend to go over and get it for you.

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  • Is it legal to buy name brand clothes at retail price purposely for resale profit

    When H&M did a collaboration with Balmain last year, I was excited to be able to buy such a high-end designer coat for the winter. The coat's retail price was $175, but they all sold out within a day or two. The very next day I saw them all over t...

    James’s Answer

    No, they can sell the coats for whatever a buyer will pay. There are laws against making false claims; but, the source or the price paid for a tangible item like a coat is generally not material to its value.
    Concert or other event tickets are somewhat different because they are usually a license to enter a place that is governed by a specific contract that can control if it can be transferred.

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  • Is there any problem with multiple successor trustees for a living trust?

    Our revocable shared living trust document lists multiple successor trustees, "each of whom has full and independent authority to act for and represent the trust". The intention is to allow each successor trustee to handle independently the dis...

    James’s Answer

    Experience has taught attorneys and courts not to appoint multiple co-trustees. they often do not agree and end up costing a lot in court costs. A better solution is to have a single successor trustee with the power to appoint single purpose temporary co-trustees. That way they can do the work but it if they get stropy, the primary trustee can remove them without a court order.

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  • How do I evict my ex?

    My girlfriend live in my house with me for many years, I own outright w no mortgage. We split utilities, but no written agreement and no rent. We broke up and I want her to move out. No cause eviction notice, but what if shes not a tenant?

    James’s Answer

    Since it is your girlfriend, I suggest you talk with her and explain that the house is owned by you and you want her to move out. She can explain why she does not want to do that and what obstacles she perceives in doing what you want.
    Then you can make a deal. She moves out and after she goes and takes all of her possessions, you give her some money.
    No courts, no lawyers.

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