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James Oberholtzer
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James Oberholtzer’s Answers

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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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  • Am I also required to pay tax to city of portland when I live in arizona?

    I sold a commercial property located in Portland, Oregon. I live in Arizona. I've filed taxes in AZ and federal tax. Am I also required to file taxes in Portland? Or do I submit the federal tax I filed to the Multnomah County taxation office?

    James’s Answer

    Yes, you must pay Oregon income tax on the sale of Oregon real estate. You file as a non-resident taxpayer. the income tax rate is roughly 9%.

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  • Do I the date the property was fully transferred to me as base or the year I won the lawsuit as a base year for tax calculation?

    My parents transferred a commercial property to me about 25 years ago. The title was in my name, but throughout the years they collected the rent, paid the property tax and managed all of it with power of attorney I gave it to them. When I wante...

    James’s Answer

    My colleague is correct. It is even worse than you thought. It is the basis in your parents hands transferred to you. It is called a "transferred basis". So, if they paid $50,000 originally and then depreciated it for 10 years for a total depreciation of $15,000. Their basis was $35,000. The depreciation continued to run every year whether you took it or not for the next 25 years. Most commercial real estate is 27.5 years so the entire value of the property would be used up and the tax basis is now zero.

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  • How can I combine different companies that I own?

    I currently own three different companies that all perform very different services in different industries. They are all currently registered each as an LLC. I, however, am wondering if it is possible to bring them all under one roof with one main...

    James’s Answer

    Yes, you can make them all owned by one company. But, why do it? Depending on your answer to this, you bet the answer to your second question about whether to use an LLC or corporation. If you had a good reason to use the LLCs to start with, you would probably stick with them. However, it is a good time to review the whole plan to see if it is still working.

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  • How do I determine if I should take a previous Trustee to court for possible Breach of Fiduciary Duties?

    At the request of my sibling (the beneficiary of our father's trust), I became the Successor Trustee effective May 31, 2016. I reside in New York, The Trust in Oregon and my brother lives in Washington. Original value of the spendthrift trus...

    James’s Answer

    I agree with my colleagues: talk to the prior trustee and the attorney before initiating a dispute. The numbers are not so far off that they may not have an innocent explanation.
    Please understand that the tax and retirement law regulations of trusts for IRAs is highly complex and relatively new.

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  • "For Sale" Sign broke Water Main--Realtor pay for damages?

    I learned today that the "For Sale" sign my realtor placed on my property was installed incorrectly (negligence according to the HOA) broke the water main. The HOA will charge my account for the damages, but said that the realtor/installer should ...

    James’s Answer

    You could have a legal claim from negligence against the real estate broker. You would have to show that the broker reasonably should have known that the actions taken to install the for sale sign would cause the damage.

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