House left in will

[amrap1956]

What is the name of your state? Ohio

Will was probated and I am the executor. All assets to be divided evenly by 3 adult sons. Can 2 of the sons give their 1/3 of the house to the 3rd. son? The same question for a car? Our lawyer says no. I find that hard to believe. They could get a payment from the estate account and just give it back....kinda hard to do with a house or car.

Thanks in advance
Ed

 

[justalayman]

http://codes.ohio.gov/orc/5815.36


An heir can refuse an inheritance. The question is: what happens to whatever they refuse. It will likely revert to the estate to be considered residue. Then, it would be treated as all other residue of the estate.

 

[LdiJ]

What is the name of your state? Ohio

Will was probated and I am the executor. All assets to be divided evenly by 3 adult sons. Can 2 of the sons give their 1/3 of the house to the 3rd. son? The same question for a car? Our lawyer says no. I find that hard to believe. They could get a payment from the estate account and just give it back....kinda hard to do with a house or car.

Thanks in advance
Ed

You can always let the house be titled to your names, and then turn around, once the estate is closed, and gift your share to your brother. In addition, there is no reason why your brother cannot end up with the car.

And no, there would not be any gift tax issues. The two brothers giving the house and car to the other brother, would have to file a gift tax return, but unless either one of them have exceeded their lifetime limit for giving (currently 11 million plus) there would be no gift tax.

 

[amrap1956]

http://codes.ohio.gov/orc/5815.36


An heir can refuse an inheritance. The question is: what happens to whatever they refuse. It will likely revert to the estate to be considered residue. Then, it would be treated as all other residue of the estate.

What is residue? I couldn't find residue in the link you supplied.

Ed

 

[amrap1956]

You can always let the house be titled to your names, and then turn around, once the estate is closed, and gift your share to your brother. In addition, there is no reason why your brother cannot end up with the car.

And no, there would not be any gift tax issues. The two brothers giving the house and car to the other brother, would have to file a gift tax return, but unless either one of them have exceeded their lifetime limit for giving (currently 11 million plus) there would be no gift tax.

That makes sense. I believe I have seen this in transfer data on properties through the auditors website. A property in husband and wife's name, then a survivorship deed naming only one of them, and then another showing only 3 different people with the same last name. Looked like an inheritance to me. Then 2 quit claim deeds on the same date leaving 1 as owner. There also was no value on any transfers except the very first.

Would a car work the same way or can the 2 other owners gift it to the 3rd at the same transfer?

Ed

 

[LdiJ]

That makes sense. I believe I have seen this in transfer data on properties through the auditors website. A property in husband and wife's name, then a survivorship deed naming only one of them, and then another showing only 3 different people with the same last name. Looked like an inheritance to me. Then 2 quit claim deeds on the same date leaving 1 as owner. There also was no value on any transfers except the very first.

Would a car work the same way or can the 2 other owners gift it to the 3rd at the same transfer?

Ed

The car is even easier. The executor can just sign the title over to the person you all want to have the car.

 

[amrap1956]

The car is even easier. The executor can just sign the title over to the person you all want to have the car.

Once probate is closed? So, the car goes in 3 names...probate closes...we can then "gift" the car to...say a grandchild?

 

[LdiJ]

Once probate is closed? So, the car goes in 3 names...probate closes...we can then "gift" the car to...say a grandchild?

Just have the executor transfer the title to whomever you all agree should have the car.

 

[justalayman]

What is residue? I couldn't find residue in the link you supplied.

Ed

The residue is anything not specifically addressed d in the will.

 

[amrap1956]

That makes sense. I believe I have seen this in transfer data on properties through the auditors website. A property in husband and wife's name, then a survivorship deed naming only one of them, and then another showing only 3 different people with the same last name. Looked like an inheritance to me. Then 2 quit claim deeds on the same date leaving 1 as owner. There also was no value on any transfers except the very first.

Ed

So, the 2 brothers can't disclaim their 2/3 of the house or any other part of the 'estate' because it's in probate?

Ed

 

[amrap1956]

The residue is anything not specifically addressed d in the will.

The will states all assets...nothing is specified.

 

[Zigner]

What is residue? I couldn't find residue in the link you supplied.

Ed

Residue is everything left in the estate after all the things named in the will have been distributed.

 

[LdiJ]

The will states all assets...nothing is specified.

Again, let the estate distribute the house to the 3 brothers and then let the 2 brothers transfer their shares of the ownership to the brother they want to have the house.

If you are all in agreement about the car, just have the executor transfer it to whomever the three of you want to have the car. You could do it the same way as the house, but its really not worth the hassle.

The will sounds pretty simple, just the three of you as heirs and no odd contingencies. As long as that is the case the three of you can pretty much agree on anything that you want, as long as its truly an agreement.

 

[Taxing Matters]

Again, let the estate distribute the house to the 3 brothers and then let the 2 brothers transfer their shares of the ownership to the brother they want to have the house.

That is not the optimal way to do this. If the only beneficiaries of the will are the 3 brothers, then the best way to this is to have the two brothers execute disclaimers for their interests in the house. Doing that would then result in their shares passing to the other two brothers. The advantage to this is that it eliminates the need to file a federal gift tax return and use up part of the unified credit. The same thing can be done for the car. The one important thing here is that the disclaimers must be done within 9 months of the decedent's date of death. If it has been longer than that, this will not work.

 

[LdiJ]

That is not the optimal way to do this. If the only beneficiaries of the will are the 3 brothers, then the best way to this is to have the two brothers execute disclaimers for their interests in the house. Doing that would then result in their shares passing to the other two brothers. The advantage to this is that it eliminates the need to file a federal gift tax return and use up part of the unified credit. The same thing can be done for the car. The one important thing here is that the disclaimers must be done within 9 months of the decedent's date of death. If it has been longer than that, this will not work.

I suggested that they wait until after probate closed and gift the property to the one brother they want to have the house, because they said that their lawyer said that they could NOT do what you are suggesting. Its a way around whatever objection the attorney has.