Time to sit Mom down and fill her in on will’s problems

Question: Despite my best efforts to get my dad to prepare a will after he learned he had terminal cancer, he failed to do so. According to the attorney, all his assets went to his widow. There are four adult children. My elder brother, an attorney, then persuaded our mother to add his name to her house title as a joint tenant with right of survivorship. She is now ailing. When she dies, will our brother get the house (worth about $450,000) and we others get nothing? Mom has told us her will leaves everything to her four children equally.

Answer: A written will has no effect on real estate held in joint-tenancy with right of survivorship. You and your siblings won’t receive any interest in that house.

If you can prove your attorney brother used “unreasonable influence” on your mother to transfer the title to her home into joint-tenancy with him, it might be possible to persuade a court to undo that title transfer. However, you would need extremely strong evidence.

Perhaps your mother doesn’t realize that her will, leaving her assets equally to all four children, will have no effect on the joint-tenancy house title she holds with your brother.

If she is capable of understanding, perhaps you and your siblings might want to have that conversation with her. For more details, please consult a local estate-planning attorney.

Pair with 2 houses can get write-offs

Question: Can a separated couple with one spouse living in one house and the other spouse living in another house fulfill the tax requirements to claim the $250,000 tax write-off on both properties?

Answer: If one spouse owns and occupies his or her principal residence for at least 24 of the 60 months before its sale, that spouse can qualify for up to $250,000 tax-free capital gains under IRC 121.

The other spouse can also qualify for the same exemption on another principal residence if they own and occupy it.

This situation often occurs when two single people sell their separate principal residences before or after getting married. For full details, please consult your tax advisor.

Rules for raising condo fees vary

Question: Is there a limit on how much a condo homeowners association can raise monthly maintenance fees?

Answer: The answer depends on the state where your condo is located and the condo association’s bylaws, which might contain a limit.

Many states also have laws on special-assessment limitations. For details, please consult a real estate attorney where your condo is located.

If buyer won’t pay, start foreclosure

Question: Because the market in our town is slow, we accepted a purchase offer with a 10% cash down payment, an 80% first mortgage, and we agreed to carry back a 10% second mortgage for five years. The sale closed on Sept. 30. The buyer’s first payment to us was due on Nov. 1, with a 15-day grace period. We have not received that payment. What should we do?

Answer: You have been very patient and need to contact your home buyers immediately. Perhaps they don’t have your new address or have another valid reason. Tell them you need the payment immediately, preferably sent by overnight delivery. Don’t accept excuses.

Even the major mortgage lenders have learned that quick action impresses new borrowers with the urgency of making mortgage payments on time.

Unless you receive your payment within a few days after your demand, it’s time to begin foreclosure. Depending on the location of the property, contact the title company or a local real estate attorney to file and record the appropriate documents to start foreclosure.

Usually, starting foreclosure is all it takes to get your past and future mortgage payments paid on time. But your home buyer is off to a bad start, so take action quickly.

Arbitration may not be enough

Question: My husband and I won a binding arbitration award through the American Arbitration Assn. against our home builder, who was given 30 days to pay us. It has now been 41 days and we have not heard anything about the money due to us. The award gives us money to have our home fixed and relieves the builder of liability for repairs. Whom do we contact to make the home builder pay us?

Answer: Winning an arbitration award is just the beginning. Now you have to attempt to collect your award.

Your attorney can best advise you how to do that under the circumstances of your arbitration award. I wish I could give more specific advice, but you apparently have a builder who isn’t going to pay without a fight.

Letters and comments to Robert J. Bruss may be sent to 251 Park Road, Suite 200, Burlingame, CA 94010.