Charleston, WV asked in Real Estate Law for North Carolina

Q: My mother-in-law wants to give the property she has in NC Dare Co. to her son as a gift. How do we need to handle this?

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1 Lawyer Answer
  • Cary, NC
  • Licensed in North Carolina

A: This is not necessarily a good idea because there are tax implications. A donor (your mother-in-law) would have to pay gift taxes on any gifts of money over $13,000. Also, there are lifetime gift exemptions and this would count against that. There is also the Medicaid look back period. Is the mother-in-law receiving or going to be receiving Medicaid within 5 years? If so, then she may be disqualified from eligibility depending on when the gift was made and when she would apply for such benefits.

I also assume the property is owned free and clear. Otherwise, any transfer would violate the due on sale clause if there is a mortgage.

Your mother-in-law needs to sit down with an estate planning attorney and see if the transfer now would make sense, from an estate planning perspective and tax perspective. If it does, then its a simple matter for any real estate or even the estate planning attorney to prepare a deed.

If your mother-in-law is adamant about doing this and does not care about the other issues, then she needs to see a real estate attorney to prepare a deed or make sure that the conveyance is structured properly so as to avoid some of the tax issues.

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