John D. Teter Law Offices

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1361 South Winchester Boulevard, Suite 113
San Jose, CA 95128

Sometimes people balk at paying lawyers to do what they think they can do for themselves. What could be simpler than a will, if you are just leaving everything to your family? All you have to do is name an executor. Two or three sentences, one page, and you are done . Right? Maybe not.

Ethel Hinz died in 1992 with an estate of over $10 million. She left a handwritten will. Her estate still has not been settled after 24 years.

The will was only a few sentences. Ethel named her son executor, describing him as her "sole heir," and saying she trusted he would "subscribe to my wishes, along lines that were discussed previously and privately in the past." Ethel wrote the will just a few days after her daughter had died, survived by two granddaughters, who would of course also be "heirs" if Ethel had not written a will.

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When you're getting ready to buy a home, you may hear terms thrown at you such as "title" and "property deed", and wonder what the difference between the two are. In real estate law, the title is a legal term that means ownership, while the property deed is the document that transfers the title from one party to another.

In regards to the title, it may be partial or full, meaning that other parties could have rights to the property, including the right to access the property, use it and transfer it either in whole or in part to another party. People can take title to a piece of property in many different forms, including joint ownership and tenants by the entirety.

The property deed is the legal document that transfers the title between parties. Under the Statute of Fraud, the deed must be in written form in order to be enforceable. The deed is filed with the official registrar of deeds in the municipality the property is located in . Deeds are also issued in other circumstances when the property is transferred , such as an executor's deed, which is issued by the executor of an estate selling property owned by the estate, or a tax deed, where the property is sold for the payment of unpaid taxes.

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Real estate law is complex, and a home sale is often intimidating. Some states require the use of an attorney, while others leave it up to the buyer and seller to decide. Your typical agent will tell you most transactions are straightforward and, if not required by law, there is no need. Is this true?

The simple fact is a real estate licensee, while they can help walk you through the sale process and fill-in the blanks of a pre-written sales agreement, is not a law expert. They have neither the ability nor right to give their clients legal advice. Unless they are also an attorney, the typical real estate agent cannot answer any legal questions, from contract law to zoning issues.

One of the greatest benefits of using an attorney, specializing in real estate law, is protecting you from financial loss. The sale agreements used by real estate agents are fill-in the blank, covering only the most common, generic issues. All real estate transactions are unique, and there is no guarantee that a generic contract will protect you. Don't you agree?

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If you are considering a 1031 exchange of real estate, it is important to understand what a 1031 exchange is and isn't, and to be aware of potential issues that could result in favorable tax treatment being denied. Real estate law is complex by itself; add in the element of tax law that comes with section 1031 exchanges and an unrepresented client could easily find themselves out of compliance with the strict requirements of the tax code.

Section 1031 exchanges are named for section 1031 of the tax code which, boiled down to its simplest, allows for property sellers to rollover gains into a new property, postponing the tax bill. There is no limit to the number of times a seller can rollover gains as long as the requirements of the law are met . Those requirements are:

  1. Like-kind property. The property being sold and the property being purchased must be used for the same purpose; that is to say that they either both have to be investment properties used in a trade or business. Property held strictly for resale will not qualify for section 1031 tax treatment; neither will primary residences qualify either.
  2. Identification period. The tax law specifies that the new property must be identified no later than 45 calendar days after the closing of the sale for the property that was sold .
  3. Purchase period. The purchase and closing of the new property must be completed within 180 calendar days from the closing of the property sold.
  4. Qualified intermediary. The proceeds from the sale of the property sold may not be touched or used by the seller in the period between the sale closing and purchase closing, and the law dictates specific requirements for who can be the qualified intermediary to hold the funds and prepare the required documents.
  5. Title requirements. The law is very specific about the fact that owner(s) of the purchased property must be the same as the owner(s) of the property sold.
  6. Equal or greater amount. The investment into the new property must be equal to, or greater, than the profit from the property sold.

Each of these requirements has its own nuances, so it is important to engage an attorney with experience in both tax and real estate matters when considering the sale and purchase of like-kind property. Contact us for more information about section 1031 exchanges.

As a landlord, you probably love being able to run your own business. In fact, you might try to handle as much of your renting business as possible, such as performing maintenance on your rentals and handling your own advertising.

It might seem natural to handle your own leases when you're renting out your real estate, but this is one thing that you should count on a professional to help you with instead. These are a few reasons why.

Templates Might Not Work for Your State

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