How can I sell my deceased mother’s property and not have it seen as a capital gain if, prior to her death, she added me as a joint tenant?

Get Legal Help Today

 Secured with SHA-256 Encryption

How can I sell my deceased mother’s property and not have it seen as a capital gain if, prior to her death, she added me as a joint tenant?

My mother listed me as a joint tenant in her coop prior to her death. It wasn’t my desire and I had no financial involvement. She passed away with the desire that proceeds be divided among her 3 children. Escrow says they need to file a 1099 for me. What can I do to have the sale seen as an inheritance, not pay capital gains, and be able to distribute the proceeds to my sisters as an vs. a gift from me? As I understand it, normally the property is valued based on the death of the owner’s death. Would that still be the case here?

Asked on December 6, 2011 under Estate Planning, California

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

One option to solve your dilemma about being named as a joint tenant on this piece of property where under operation of law you inherit its entirety since you survived your mother is to sign a written "dislcaimer" of your joint tenancy rights and record it. By doing this, the property then gets transferred under the terms of the Will or trust and if none of the two, by intestate succession where the state per statute determines who closest in relation inherits. If the closest relations are the children then they should receive the property.

By doing this, the property should get a stepped up basis for tax purposes and the three children share equally. I see no reason why there should be a 1099 to you concerning the joint tenancy issue. I recommend that you first consult with a Wills and trust attorney before you make any final decision.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption