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March 21, 2008 5:00 PM
Mom wants to give daughter half her house
Posted by Elizabeth Rhodes
Q: A single mother I know intends to quit-claim a half-interest in her house to her teenage daughter. The mother says she wants to make sure the girl is taken care of if she dies. I'm worried this could have unintended consequences, but the mom says she isn't worried because her daughter is a good girl. Your thoughts?
A: Bellevue attorney John Sherwood Jr. didn't outright say don't do it, but he raised enough red flags to give anyone in your friend's situation serious pause.
First, filing a quit-claim deed on a half-interest in her home may not accomplish what Mom wants it to do.
"At the end of the day, giving the daughter a half-interest in the house doesn't give her the house on Mom's death," says Sherwood, of the Peterson Russell Kelly law firm. But it could complicate the daughter getting it. Say there are other siblings, or Mom remarries. Even if she doesn't leave a will, there may be others to inherit Mom's half.
Then there's the finality of quit-claiming property. It's irrevocable and Mom can't force her daughter to return this very generous gift, says Sherwood. That can have serious consequences both now and down the road.
While the daughter is a minor she can't technically own property, Sherwood notes. So Mom would probably need a lawyer to see if there's a legal way around this technicality. Also, Mom's current mortgage company is unlikely to like this change -- and the loan documents could prohibit it.
Even without that, Mom won't be able to borrow against the house without her child's permission -- and as a minor the girl can't give permission.
Once the daughter is an adult there are other minefields.
Say Mom wants to sell the house; maybe she needs the money for medical expenses. She can't do so without her child's permission -- or a costly, emotionally charged legal fight.
Alternately, say the now-adult daughter wants to sell the house to get money for something she wants. If Mom doesn't agree, the daughter can go to court to force the sale. (Or worse yet, daughter marries, dies and the son-in-law inherits the daughter's half-interest and forces a sale. He'll potentially get to keep half of the sale proceeds.)
Other pitfalls: the daughter gets hit with a legal judgment or has creditors after her. They could go after the house, Sherwood says.
Then there are various tax implications to consider. Mom should consult a good accountant to find out what they are and how they could affect her.
And of course there are the simple realities of owning a house. Once the daughter is an adult will she be expected to help pay property taxes and maintenance costs? Or will Mom, who now owns only half the house, still be stuck with 100 percent of its costs?
"There are other ways to transfer property that are better and don't involve Mom making a gift of the property now," Sherwood concludes. A well-written will is one of them.
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