Updated: Tuesday, June 27, 2017
Probate Home Sales Have Their Own Special Rules
Frequently the real estate that had been owned by a person now deceased is made available for sale through a procedure commonly known as a "probate sale." When this happens a somewhat complex set of rules comes into play, especially, of course, in California.
The personal representative of the estate also known as the executor or the administrator, depending on the circumstances may seek purchasers directly or he may list the property for sale with a real estate broker. If the property is listed, the listing period may not exceed ninety days California Probate Code 10150a. Extensions of up to ninety days each may be granted if needed.
Prospective purchasers often find that things get a bit confusing when an offer is made. Generally, negotiations will be conducted as in an ordinary sale. That is, the offer may be presented to the executor, that person might then issue a counter-offer, there could then be a counter to that, etc. However, even when the executor and the purchaser have come to terms, the deal is still not final.
The estates acceptance is subject to confirmation by the court. The executor must petition the court for a hearing date for the purposes of confirming the sale. That is a public hearing, and notice of it is made public. The date set for the hearing will depend on the court calendar.
At the time of the hearing other interested parties may bid on the property as well. The Probate Code sets forth a formula for determining the minimum amount of the first overbid. The first overbid amount must be at least "10 percent more on the first ten thousand dollars 10,000 of the original bid and 5 percent more on the amount of the original bid in excess of ten thousand dollars 10,000 " [Probate Code 10311a1]
Suppose, for example, that an executor had accepted an offer of 300,000, and that you came to bid on the property at the confirmation hearing. You couldnt open by bidding 301,000. According to the formula the first overbid would have to be at least 315,500. 10 of the first 10,000 = 1,000, 5 of 290,000 = 14,500.
After the minimum overbid has been made, there can, of course, be further bids. These are not subject to a formula, and the court may set the bid amounts at that time. For example, the judge can say that he will hear further overbids only in increments of 500.
If there is bidding, and the highest offer is on different terms than the originally accepted offer, the court will not confirm the highest offer unless its terms are acceptable to the estates representative. For example, the estate might have preferred and originally accepted an offer that involved credit such as carrying back a long-term mortgage. It is a myth that probate sales must only be cash to the seller. If an overbid offer were for cash, it would not have to be accepted. Similarly, if the accepted offer had been for cash and the overbid involved credit.
In general, the probate rules and procedures are designed to bring the best price to the estate. In that regard, the court is granted a great deal of discretion. Even with overbids, the court may disallow a sale, and order a new one, if it feels the price is not appropriate.
The code also directs the court to determine that the property received adequate exposure to the market. Listing brokers of probate sales need to be prepared to show that the property was marketed thoroughly.
There is a very complex set of rules for determining brokerage commissions in the event of an overbid situation, and it would not be beneficial to recite them here -- especially because they can be set aside by the court. Brokers need to warily remember Probate Code 10161a, "whether or not the agent or broker has a contract with the personal representative, the fee, commission, or other compensation of an agent or brokershall be the amount the court, in its discretion, determines to be reasonable..." [my emphasis]
It is often thought that probate sales represent the opportunity to find "a steal". Given the procedures set forth for making such sales, that is highly unlikely.
Bob Hunt is a director of the California Association of Realtorsreg;. He is the author of Real Estate the Ethical Way. His email address is .
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Real Estate Is Lucrative For Canadas Taxman
The Canada Revenue Agency CRA continues to follow through on the crackdown it announced last year on people who fail to report income from real estate transactions.
The agency says that from April 2015 to March 2017, real estate transaction audits found 329.4 million in assessed income that had not been reported. That resulted in more than 17 million in penalties, "primarily associated with Canadas two major real estate markets in Toronto and Vancouver," says the CRA.
The agency says it conducts audits on real estate transactions on a regular basis, "including in regions of Canada where economic factors may increase the risk of non-compliance." In 2015 it doubled its efforts on the real estate sector in B.C. and now it has started a review of 500 high-dollar-value real estate transactions in that province "to uncover any tax issues that may not have already been identified."
If a taxpayer knowingly makes a false statement when filing a return, they will be assessed a penalty equal to 50 per cent of the additional tax payable. In the last two years, 885 such penalties were assessed. The largest penalty was almost 2.5 million.
In addition to income tax, the CRA also checks to see if GST/HST payments have been made. It also reviews whether rebates that have been claimed for new homes or rental housing are legitimate.
In Ontario, the agency looked at 14,735 files for the GST/HST New Housing and New Residential Rental Rebates programs, recovering 190.8 million. In B.C., 2,546 audits recouped 10.8 million.
"Builders of new residences or rental properties are required to collect and remit the GST/HST to the CRA when they sell, rent out for the first time, or appropriate the property for personal use," says the CRA. "Additionally, purchasers of new residences must ensure they abide by the rules when applying for new housing rebates."
Builders of new or "substantially renovated homes" must charge and collect GST/HST when the home is sold and report the tax.
"If a builder leases a new or substantially renovated home, the builder is deemed to have sold the home to themselves. The GST/HST is payable and collectible at once on the fair market value of the home, including the land value, and the builder must report that tax to the CRA," says the agency.
Most resale homes are exempt from GST/HST, but "there may also be GST/HST implications for flipping transactions, if a property is new or has been substantially renovated," says the CRA.
There were 2,110 Ontario files audited for income tax compliance, with 30.4 million recovered, while in B.C. 288 income tax audits yielded 12.7 million in unreported taxes.
Capital gains on the sale of a taxpayers principal residence are generally exempt from taxes. However, beginning with the 2016 tax year, taxpayers who sell their principal residence must report the sale when completing their income tax returns.
"For the sale of a principal residence in 2016 or later tax years, CRA will only allow the principal residence exemption if you report the sale and designation of principal residence in your income tax return. If you forget to make a designation of principal residence in the year of the sale, it is very important to ask the CRA to amend your income tax and benefit return for that year. Under proposed changes, the CRA will be able to accept a late designation in certain circumstances, but a penalty may apply."
The agency says a non-resident who invests in property in Canada "is liable to pay tax on gains that arise from the sale of that property and is generally not eligible for the principal residence exemption."
The CRA determines a persons residency status on a case-by-case basis, considering their residential ties in Canada, the purpose and duration of their visits outside of Canada and their social and economic ties outside of the country.
"Residency status should not be confused with citizenship," says the CRA. "Non-residents only have to report their Canadian-source income, unless a tax treaty provides otherwise. An individuals residency status is therefore essential in determining what income must be reported."
Taxpayers who think they have made a mistake or who forgot to report real estate income can correct the record here. They may also be able to take advantage of the Voluntary Disclosures Program where the CRA says it may "offer you a second chance to make things right."
The agency says it is continuing to strengthen >"Our government has committed to protecting the fairness and integrity of the tax system for all Canadians, notably by cracking down on tax cheating in real estate transactions," says Minister of National Revenue Diane Lebouthillier. "This means that, without exception, every taxpayer abides by the same tax laws."
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The First-Time Homebuyers Guide To Grown-Up Furniture
You just bought your first home. Congratulations: Youre an adult Now its time to fill it up. But if you were planning to pack up those ratty old beanbag chairs and the bed that awakens you with a morning backache and move them to your new place, we have a few suggestions. Its time for a grown-up upgrade. Heres where to start.
Invest in the important staples
You can scrimp on your mattress because its not something that guests will see, right? Not so fast. A good mattress should be at the top of your list because it affects something more important than the opinions of friends and family: Your health.
"You wouldnt run a marathon or hike a mountain without the right gear. And yet, despite spending a third of our lives sleeping, many of us havent adequately prepared in the bedroom - when it comes to mattresses, that is," said Huffington Post. "You might be tempted to blame your budget for continuing to doze on a less-than-ideal mattress, but considering justa little bit more shut-eyecan help you lose weight, improve your memory and live longer, can you really put a price tag on good sleep? But the wrong mattress - or the mattress thats simply too old - can be the cause of more than that crick in your neck or yourlower back pain. Here are five sneakier ways your mattress affects your sleep -andyour health.
If you just cant bring yourself to spring for that kind of big-ticket item right now, look for opportunities to spread out payments with a zero percent interest deal, which more and more retailers are offering. Go to a place like Rooms to Go and you might be able to get your mattress and a living room set with monthly payments that are right around what you and your honey would pay for a nice lunch.
Measure, measure, measure
Having furniture thats too small or too large for a room can make it function poorly and look "off." Measure ahead of time so you know what to look for. Stores like HomeGoods have stacks of paper measuring sticks laying arouond, but you wont always be that lucky. Measure your space and input everything in your phone, stash a measuring tape in your bag, and you wont have to guess if something will work when youre out shopping.
Dress up the bed
One of the best ways to make a bedroom look pulled together is with a headboard. But many people dont even take a look at options because they assume they will be too expensive. You can get a super chic headboard for a minimal spend if you know where to go. This tufted headboard from Overstock looks like it would cost you about as much as a monthly mortgage payment, but its just 137.
Buy a decent couch
The couch falls squa>Youll hate yourself - and your couch - if you buy super cheap just to get something in the room. And were speaking from experience. Our first cheapie couch purchased online, BTW started falling apart after about a month. Contrast that against what Sothebys-trained home shopping expert Jennifer Litwin, author of Best Furniture Buying Tips Ever, says should be the lifespan of the couch: "The general prognosis isabout 10 to 15 years, she told The Nest. You can scrimp on other, easily replaceable items like side tables and chairs that wont be used often, but when it comes to that couch: Go ahead and splurge a little.
Like and follow influential sites
Speaking of chairs
Just today we learned about this great-looking 43 chair on Amazon that we never would have known about if we werent fans of MyDomaine. And, by fans, we mean we follow them on Facebook. "The midcentury-modern chairs feature velvet upholstering, steel legs, and are available in dusty rose, moss green, gray-green, and teal, to name a few," they said. Theyre sold in a set of two, starting at 85."
Sites like Apartment Therapy and Design Sponge are great places to get interior design ideas, and liking and following a few favorite stores like World Market and HomeGoods and online sites like Wayfair and One Kings Lane is a great way to keep up to date on sales and trends.
Be careful about buying online
When comfort and quality are key, you want to be careful about buying without being able to see, touch, and sit. If you just have to have it, at least you can read what others have to say before producing your credit card. Back to that 43 chair from Amazon: "How do you know if chairs sold on Amazon look and feel as luxe in real life," asked MyDomaine. "Members of the Facebook group purchased the chairs and posted images of the items IRL, confirming that they live up to the hype.Yes, if the long chain of comments, likes, and photos are any indication, this might be one of Amazons best-kept secrets."
Buy some art
Real art, from real actual artists. You can find some surprisingly affordable pieces that will give your home a personal touch. "Collecting art can be an expensive habit, but these days there are plenty of places to get amazing original art for a great price," said POPSUGAR. Like Minted, one of our favorite spots for original art that "discovers talent through ongoing design competitions. Designers submit, the Minted community votes to tell them what to sell, and we end up with seemingly limitless options at super affordable prices," they said.
That doesnt mean you need to give up all your posters although, we adults call them "art prints." Just get them framed nicely. "Luckily, framing has never been easier, now that there are online services like Framebridge," said Refinery29. "And when all else fails, you cant go wrong with the basicIkea RIBBA framesjust make sure the art fits and doesnt slip and slide around when its hanging on the wall."
Dont be afraid to go to IKEA
IKEA is good for more than frames, even though you probably equate grown-up furniture with stuff you dont have to put together yourself. But not everything has to be a permanent fixture when youre just starting out. Concentrating on the big-ticket items may leave limited fuds for available to fill in the rest of your place. Many a new homeowner has hit the big blue-and-yellow warehouse and headed straight for the MALM dresser. Its cheap starting at 54 for a two-drawer version, its functional, and if you have a little bit of creativityor the ability to do some basic research and follow directionsyou can turn it into something that looks far more expensive.
Were also loving this South Shore Cookie 6-Drawer Double Dresser in gray and white from Walmart, which could give you the function in you need in an extra bedroom or guest room with a sleek, modern look. We guarantee your guests will never know where it came fromunless they were savvy enough to purchase on for their own home.
Get a few key housewares
Living like an adult isnt just about what you put stuff on. Its also about the stuff you put on you. Still using the same stiff sheets you bought for your first apartment or ratty towels youd be embarrassed for company to see? "Youll feel more grown-up the second you stop drying off your body with a towel that has a fish in sunglasses on it," said Refinery29."
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