Legal Question in Real Estate Law in California

How do I take my brother, who is currently not in the U.S., off a real estate property title in northern California? He and I bought the house while we were both single. Now both of us are married and have our own family. Thanks.

Asked on 1/19/11, 11:16 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Well, there are two basic things you both need to know. First, technically, you can't take him off title; he will have to remove himself from title by executing and delivering a deed conveying his interest in title to whomever will be the substitute holder, presumably you. Next, since the deed will need to be recorded after delivery, and recording requires that the grantor's signature be acknowledged before a notary or other authorized official, you'll need to figure out where the acknowledgment can be accomplished. Civil Code section 1183 lists persons authorized to do acknowledgments of deeds outside the United States.

Both of you should consider property and income tax consequences of a change of ownership. The transferred interest will be reappraised for property tax purposes, and the gift or sale of real property will likely have a significant tax consequence, now or when the property is finally sold.

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Answered on 1/24/11, 4:48 pm
Shahram Miri Law Offices of Shahram Miri (408) 866-8382

The answer is straight-forward, albeit there are significant tax consequences.

In order to complete the transfer, he needs to execute a grant or quit-claim deed which will transfer his interest to somebody else. Since he is out of the country, he needs to record a power of attorney in the county where the property sits. This will allow his agent to sell the property on his behalf. The power of attorney can be completed out of the U.S. and mailed back here as correctly pointed out by Attorney Whipple.

As for taxes, the transaction will involve either gift or income (capital gains) taxes, real property tax re-assessment and potentially the documentary transfer tax if the sale is not a gift.

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Answered on 1/24/11, 5:37 pm

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