Discussion:Is it a Gift or Inheritance
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Discussion Forum Index --> Advanced Tax Questions --> Is it a Gift or Inheritance
Discussion Forum Index --> Tax Questions --> Is it a Gift or Inheritance
| 5 June 2008 | |
| Taxpayer quit claims by deed his home to his child. Taxpayer dies before the quit claim deed is recorded. Th will is completed before death. Signing of the quit claim is notorazied. After death of taxpayer the child records the quit claim deed. Is this an inheritance or a gift? | |
| 5 June 2008 | |
| I'll venture a guess and say that the gift was revocable until the QCD was notarized. After that it would become irrevocable, and it would be a completed gift, wouldn't it? The child would have been legally able to sell it or encumber it at that moment. Recording the deed just puts others on notice. On the other hand maybe you have some state law that says it isn't a done deal until it is recorded. Fortunately this is really not for you or me to decide. This is why attorneys handle these matters. | |
| 6 June 2008 | |
| Depends on the state where the property was located. I will assume that the property was located in California. If so, then the gift was effective on the date the deed was executed. | |
RoyDaleOne (talk|edits) said: | 6 June 2008 |
| I would think that until the deed is recorded or delivered that the gift is not complete.
In addition, is not gifts within three years of death? It was called livery of seizen. | |
| 6 June 2008 | |
| Generally, at common law, as between the two parties, the title passed upon proper execution and delivery of the deed. Recording was just to give notice to the rest of the world.
Before writing was common, they actually handed over a clod of dirt. It was called livery of seizen, as Roy mentioned. | |
| 6 June 2008 | |
| For those interested, notice how they handled recording (para. two below), which is a secondary issue:
Livery of Seizen "After Statute Quia Emptores, real estate transactions became more common and there became an open market for real estate sales, albeit there was no middle class. Starting in 1290 and for the following 200 years or so, transactions occurred in a ritual ceremony, called livery of seizen, which took place on the land the subject of a sale. England was still virtually illiterate, except the clergy and the lawyers. In order to transfer title to land, in order to have a real estate closing, the buyer and the seller stood on the land in question. That meant if a man in Devon wanted to buy property in York, he had to travel to York and go through a ritual ceremony with the seller. Know as livery of seizen the ceremony consisted of the seller handing the buyer some indicia of the land, a lump of dirt, a twig off a branch from a tree. In one case we know of the symbol was a cows horn and the buyer received title to all the land within earshot of a note blown on the horn. A system of maintaining a record was needed since there was no county clerk to record this transaction nor microfilm on which to memorialize a sale. But the men of the middle ages were ingenious and they came up with a method of creating record, albeit mental. They used a small boy. Old enough to have later recollection but as young as possible to get the most years memory out of him, usually about age six or seven. At the moment of delivery of the lands symbol a third person would strike the lad on his backside, leaving a lasting impression of the event. Not as efficient as microfilm but better than trusting the parties to the transaction alone. This system lasted for another two centuries until the reign of Henry VIII." It's still not a bad idea for the OP to speak to a lawyer in his own state, especially in the Western states. | |
| 6 June 2008 | |
| Do note that if taxpayer continued to live in home until death the question becomes moot.♫ | |
| 6 June 2008 | |
| I vote that is was definitely a gift. The ownership of the property (evidenced by the deed) conveyed upon execution of the deed by the grantor. The transfer was then complete as RoyDale noted. I agree that recording is merely a notifying event to prevent someone from coming along and recording another deed. Florida is a notice race state - meaning that the first recorded deed wins. What if grantor executed deeds to more than one grantee? Thus, I digress.
If properly notarized, the fact that the grantor signed the deed (as the grantee does not sign the deed - at least not in FL) would have been verified (notarized) perhaps just seconds after the grantor's execution of the document. If done later, then the notary probably violated the law. How does one notarize a dead man's (woman's) signature if he/she didn't witness the signing? | |
RoyDaleOne (talk|edits) said: | 6 June 2008 |
| However, after executing the deed the donor holds the deed, and later decides that the gift is not to be made and destroys the deed without recording the deed.
In addition, the donee is not aware of the gift at the time the deed is executed and has not had a chance to refute the gift. I don't think the gift is complete without some step beyond the mere executing of a deed. This is because the donor has the power to undo the gift, by destroying the deed, therefore, the gift is not complete. | |
| 6 June 2008 | |
| ask if any 6 year old boy received a spanking - that would complete the gift, Roy | |
| 6 June 2008 | |
| Well, we could actually sit here and "what if" til the cows come home. donee didn't hold the deed. Donee didn't later decide not to gift and destroy the deed without recording it.
I think the case stated "After death of taxpayer the child records the quit claim deed." Correct? If it was recorded it must have been executed and delivered? Yes? If the deed was recorded, then the question becomes "when did the title convey?" No? I argue, at execution of the deed and delivery. It was clear to me that the deed was conveyed and recorded. You guys sometimes remind me of the Netflix commercial.... Kenvinh5, huh? | |
| 6 June 2008 | |
| delivery of the deed - perhaps the deed was not delivered until after death, 94 - as in it was found on the bedside table next to the dearly departed | |
| 6 June 2008 | |
| Kevinh5,
my A.D.D. kicks in on long posts and I often don't get to the end. Now, I get it. Thanks. Is it the weekend yet? | |
| 6 June 2008 | |
| it is somewhere
any votes to bring spanking back into vogue as a business practice? I would think that it would be quite popular in some circles. | |
RoyDaleOne (talk|edits) said: | 6 June 2008 |
| 94nole with the facts as stated, in the very first post above, no one can answer the question(s), because to many relevant facts are missing.
All that is moot in my opinion, because the gift is mostly includible in the descendent's estate, under various theories. | |
| 7 June 2008 | |
| Agree with ?Dennis. If taxpayer was living in the home on the date of death, the property gets thrown back into the gross estate -- although I also believe that it would be necessary to file gift tax returns. | |
