Berkeley CSUA MOTD:Entry 37887
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2025/07/08 [General] UID:1000 Activity:popular
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2005/5/30-6/1 [Reference/RealEstate, Reference/Tax] UID:37887 Activity:high
5/30    dear motd probate lawyer,
        an elderly woman who lived in an expensive house dies, leaving two
        surviving sons, brother X and brother Y. After her death it turns out
        that several years before, brother X got her to sign over the deed to
        the house to his name in exchange for some money that was worth less
        than 10% of the value of the house. no one else in the family knew
        about this and everyone assumed she still owned the house at the time
        of her death. People suspect that coercion or trickery was involved
        but there is no proof. The brothers don't get along but the mother had
        a good relationship with both and there is no possibility that it was
        her intent to "cut off" brother Y from owning his share of the house.
        Does brother Y have any legal recourse?    -clueless about legal stuff
        \_ this is pretty sad. I assume you're Y. You can take X to the court
           of course, but you have no evidence of coercion, and basically,
           you have no case. You might be tempted to talk to lawyers and
           many will take up your weak case without telling you
           what your real chances are, since they just want to take your money
           (trust me, many lawyers will tell you what YOU want to hear and
           take you for a ride). Trust me, my grandpa left several estates
           back in my country and my dad, who thought he was close to his dad,
           only got 20 acres of tea farm while my old uncle (the oldest son,
           who never talks to my grandpa), got EVERYTHING. But this is in Asia
           and the oldest son always gets everything, and there's nothing you
           can do. Anyways, let's examine your case. If you really had a
           good relationship with your mom, and if she's not senile
           or stupid to be tricked, then she would surely have consulted
           with you in regard to the transfer of deed.  The fact that
           she didn't tell anyone, is an indication that 1) she really
           favored X for whatever reason, like being the oldest son,
           etc and 2) she didn't want to hurt your feelings. If this is the
           case maybe it's time to reflect back and see that perhaps, perhaps
           you weren't as close to her as you originally thought. And if she
           was indeed coerced, then I'd just take this as an expensive lesson
           in life, because seriously, your case is just weak. It's a
           cold world out there and it's all about survival of the
           fittest, and it's clear to me that X is the one who's more
           fit, you're weak. I'm sorry, I wish you luck.
           \_ Sorry but you're totally clueless.  This isn't "the old country"
              where you come from.  Judges here 'tend' to apply common sense
              to cases when allowed to by law.  See below for a much more
              useful answer as it applies in the US.  In short, the cheated
              son should consult a few lawyers, compare notes, and decide
              from there.  This sort of thing is very common unfortunately
              and can be invalidated by a judge quite easily if they choose
              to do so.  From the OP's description there was clear intent to
              defraud the mother and other heirs.
        \_ I'm not a lawyer yet, but some things I think you need to find
           out about are:
           (1) Was the contract between mom and X for the sale of the home
               in writing? - If not, mom's estate may be able to void the
               the contract b/c the statute of frauds.
           (2) How educated was mom in relation to X and was mom in decent
               health, &c. when the contract was made? - If mom wasn't very
               well educated or was sick, &c. it might be possible to void
               the contract b/c of a lack of capacity/unconscionability
               since the price was so low (by itself the low price probably
               is not sufficient to void the contract, and I'm guessing that
               you won't be able to find evidence of coercion/duress).
           (3) Did X record his deed? - If so, it will hard to invalidate
               the transfer from mom to X.
           (4) Did mom live in the home (or rent it out and keep the rent)
               after she "sold" it to X? - If so, mom's estate can argue
               that the deed to X is ineffective b/c mom did not have an
               intent to convey the property to X.
           (5) If mom lived in the house or rented it out, (i) did she do
               w/ X's possession and (ii) how long did she do it? - Mom's
               estate might have a claim of adverse possession.
           Notes/Assumptions:
           (a) I'm guessing that mom didn't have a will or her will didn't
               cover the house or what to do w/ unidentified property
               interests.
           (b) The deed from mom the X didn't impose any conditions on X
               that X might have violated thus forfeiting his claims.
           (c) There might be a statute of limitations problem w/ (1) and
               and (2) if the sale happened a long time ago.
           (d) Unless Y is the executor/receiver of mom's estate, I don't
               think that Y can sue X directly for (1) and (2), however Y
               probably can sue for (4) and (5) directly
               think that Y can sue X directly for (1) and (2).
               \_ Anyone with an interest can sue.
                  \_ My contracts class was a mess but I'm pretty
                     sure that for a 3d party, like Y, to sue on a
                     contract theory (#1 and #2) they will need to
                     show that there were an assignee or a 3d party
                     beneficiary.
                     It doesn't look like mom assigned her rights
                     under the contract to Y, so Y would have to
                     argue that he was a 3d party beneficiary
                     under the contract to Y, so Y would probably
                     have to argue that he was a 3d party beneficiary
                     (possible, but hard) of the contract in order
                     to sue on his own, which is why I said that
                     Y probably can't sue X directly.
                     \_ This isn't a contracts issue.  It is fraud and probate.
                        It is also defrauding the IRS since I'm sure the son
                        who stole the house didn't pay taxes on his instant
                        10x profit on the difference between what he 'paid'
                        and the fair market value of the house.
                     \_ This isn't a contracts issue.  It is fraud and
                        probate. It is also defrauding the IRS since I'm
                        sure the son who stole the house didn't pay taxes on
                        his instant 10x profit on the difference between
                        what he 'paid' and the fair market value of the
                        house.
                        \_ AFAIK, there are multiple issues here.
                           (1) Y wants to rescind the contract for
                               sale between mom and X which means
                               Y needs standing under a contract
                               theory. If fraud was involved in
                               the formation of the contract for
                               the sale of the home, then the
                               contract is generally voidable by
                               the parties.  I don't think there
                               are enough facts to show fraud,
                               misrepresentation, &c.; incapacity
                               and unconsionability are probably
                               better theories.
                               theory.
                           (2) There may or may not be a probate
                               issue separate from the contract
                               issue - did mom actually transfer
                               an interest to X and did mom get
                               and interest via adv possession?
                           (3) There may not be a tax fraud issue
                               if 10% of fmv is close to the state
                               assessed value of the house.
           (e) I think that Y can sue directly for (4) and (5) b/c mom
               would have retained a property interest that (assuming the
               will did not deal with explictly) may have passed in part
               to Y.
           BTW, is this for real? It sounds more like an exam question.
           \_ Yes, this is a real case, and yes, it's pretty sad. I'm not Y
              (though I can see why people might assume that) but he's someone
              I care about and I appreciate the advice so far. I guess the
              first reply mirrors the kind of worry I have about lawyers
              pressing for a case when there's no case there, which would waste
              a lot of money, and more importantly, cause a lot of unnecessary
              stress. Then again, i don't see this as weak versus strong (and
              there is no "survival" involved). what's "strong" about cheating
              an old woman? but of course I'm biased. The mom did live in the
              house until she died. Apparently after selling the house she
              told a friend of hers it was one of her "biggest regrets". The
              rest of the questions I don't have answers for right now. -op
              an old woman? (I know, I'm biased). The mom did live in the
              house until she died without paying rent. Apparently after
              selling the house she told a friend of hers it was one of her
              "biggest regrets". The rest of the questions I don't have
              answers for right now. -op
              \_ If mom lived in the home rent free, it would strengthen
                 #4, but it might cause you a problem with adv possession
                 (esp if mom knew she had sold it).
                 If you answer #1 or #2 as yes, then you might have a case
                 and should probably see a real lawyer and see what they
                 think. If the plan is to sell the home, you might be able
                 to get the lawyer to take the case on contingency that Y
                 wins and gets an interest.
                 \- It seems to be the strongest thing to focus on
                    is the sham sale, given that it was not anywhere
                    near market value. Otherwise that would be a way to
                    get around tax laws. I think you may be able to attack
                    that way. If you hire your kid to mow the lawn so he
                    is eleiglbe for your "corporate education program"
                    where you pay for his college and then you claim that
                    as a business expense, something fishy is probably going
                    on. etc.
                 \- It seems to be the strongest thing to focus on is the
                    sham sale, given that it was not anywhere near market
                    value. Otherwise that would be a way to get around tax
                    laws. I think you may be able to attack that way. If you
                    hire your kid to mow the lawn so he is eleiglbe for your
                    "corporate education program" where you pay for his
                    college and then you claim that as a business expense,
                    something fishy is probably going on. etc.
                    \_ The "sham" sale may not be the best thing to
                       focus on:
                       (1) The fact that the sale price was 10% of fmv
                           is inconclusive b/c family members often
                           sell land to each other at below fmv in
                           order to keep the property tax low (in sj
                           there are homes the city values at $200K
                           for property tax but fmv ~ $1.2e6, a sale
                           at $200K would be ~ 17% of fmv but still
                           legit)
                           \_ My understanding is that property values are
                              re-assessed whenever a property changes
                              ownership, so it doesn't matter if the sale price
                              was x% of fair market value.
                       (2) Unless there is conclusive proof for the
                           sale, X can claim that the money he gave
                           his mom was a gift and that she made a
                           separate gift of the home.
                           \_ BZZZT!  Gifts are limited to $11k per person
                              without getting nailed by the IRS.
                              \_ Even if X had to pay the tax it is
                                 probably on the assessed value (in
                                 CA generally less than the fmv) so
                                 claiming it is a gift maybe pretty
                                 good for X.
                              \_ There is a large exemption called the unified
                                 tax credit which everyone uses when gifting
                                 houses.
                       (3) Y may not have standing to sue under the
                           contract.
                       Best thing OP can do is to get more info and
                       then go see a real lawyer.
                       \- yes, i understand this happens, i understand
                          the law and tax enforcement people dont spend a
                          lot of resources rooting this out, but i image
                          it is not legal ... just like a business is supposed
                          to be in the business of making money if it is to
                          be treated as such for tax reasons.
        \_ I am aware of a situation where a 'family friend' bought a
           house from an old widow for quite a bit less than it was worth.
           Someone involved in the process (attorney, realtor, or
           accountant - I have forgotten) noticed the unusually low sale
           price. The transaction was rescinded by a court after they
           found the woman mentally incompetent. The house went on the
           market with the stipulation that the 'family friend' could not
           bid on it for something like 30 days. It ended up selling for
           $70K over asking, which was like double what the 'friend' had
           offered. He was not the winning bidder. This happened in CA.
2025/07/08 [General] UID:1000 Activity:popular
7/8     

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