Legal Question in Real Estate Law in California

what paper I need

I need to know what paper to get when one spouse is buying another out, Giving them money and then getting a new Loan. the exchance of money and taking over the home.

Asked on 9/08/06, 6:31 pm

4 Answers from Attorneys

Lyle Johnson Bedi and Johnson Attorneys at Law
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Re: what paper I need

Generally when one spouse purchases real property from the other an interspousal transfer deed would be used. Such transfer are most commonly part of a dissolution of marriage. Both parties shoud consider the tax consequences of such a transfer.

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9/17/06, 4:01 pm
Michael Olden Law Offices of Michael A. Olden
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Re: what paper I need

basisly you need an attorney who specilizes in real estate transactons and litigtion to advise you as to how to handle this situation as you have not given sufficient facts as to why you are doing this and there are possible significant tax effects as to this situation. the cost is well worth it and in my 30+ years of practice in the s.f. bay area i have helped menay people stay out of trouble

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9/09/06, 5:22 pm
Roy Hoffman Law Offices of Roy A. Hoffman
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Re: what paper I need

It depends on why this transaction is taking place; however, I would recommend that you use a grant deed to transfer title to the property from one spouse to the other (or a quitclaim deed could be used). You should also have a contract of some type drafted that sets forth each spouse's duties and obligations under your agreement. Once title is transferred into the name of the acquiring spouse, the acquiring spouse should be able to obtain a new loan (assuming that the acquiring spouse's credit is adequate, and assuming sufficient equity exists).

It would probably be beneficial to get an appointment with an attorney in your area to explain the transaction, and to have the appropriate deed and contract prepared.

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9/08/06, 6:53 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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Re: what paper I need

If the change of ownership and the new loan are all part of the same transaction; that is, both happen more or less at the same time and one more or less depends upon the other, it might be possible to rely upon the lender (not the loan broker!) and the lender's escrow and title company to prepare all the documentation. This is the lowest cost approach that is relatively safe from future problems. Filling out and recording deeds yourself could work, but the possibility of a costly error is quite high and so this is a not a good choice.

The safest approach is to use a lawyer to review the background reasons for doing this deal and advise on its overall wisdom, then if it passes muster, to draw up bulletproof documents.

Among the common problems that lawyers (and judges) frequently see with deals like this are (1) the spouses are trying to hide assets from a creditor with a claim against the transferor spouse, and (2) the deal results in an unforseen tax problem, either because the property is reassessed and loses its low Prop. 13 valuation, or there is a step-up in basis that triggers a gift tax or capital-gains tax liability. The tax man is almost certain to find out; he monitors recorded deeds and investigates.

Transfers of property between spouses are a fraud on creditors if they have the effect, broadly speaking, of "hindering, delaying or defrauding" a creditor with an existing or even a potential claim against the transferor.

I suggest review by a tax and fraudulent-transfer savvy attorney. Real estate prices are still high enough, and tax and fraud problems costly enough, to make a few hundred bucks of professional fees for a consultation a very good investment.

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9/09/06, 1:15 am

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