What type of professional should I seek in providing advice?

I live in California and I need advice regarding the following. My partner passed away this year and we shared a couple of things together. Bank account (checking) and a timeshare. He was still legally married. Who should file his 2007 taxes? What would happen if his taxes weren't filed? Also, if the timeshare is sold, would the wife be entitled to any of the proceeds?What type of professional should I seek in providing advice?
Consult a probate attorney. You will need legal advice and maybe legal assistance to sort out what is yours from what belongs to his wife.





You didn't mention whether he had a will, or whether he or his wife were legally separated or had filed for divorce. Any of those could have an effect on things. California is a community property state, in which everything a man and wife own or owe is legally presumed to be equally the property of the other partner, and in which the property of the one who dies passes to the one who survives.





When someone dies, his bank accounts are normally frozen until the bank receives advice from the court or from the executor, or both. If you and he shared the bank account, his wife will have a claim against some or all of the funds in the account, since she was still his wife. If you claim that some of the money in the account was yours, it will be necessary for you to show records that establish what portion of the account should be credited to you.





It will be the responsibility of the executor of his estate to file his income tax returns for 2007, and if there is a refund, that will belong to his estate. If there is no executor, the probate court may appoint one or his wife will, by default, become the executor. If his tax return for 2007 is not filed, and he owed money to the IRS or to the California Franchise Tax Board (for those who do not live in California, the FTB is our state taxing agency), his wife will be responsible, since they were still legally married.





What happens to the timeshare depends upon who owned it prior to his demise. If you and he owned it as partners, then his wife will be entitled to his share. If the ownership is fuzzy, and not clearly defined, she might be able to get it all.What type of professional should I seek in providing advice?
a lawyer
You asked:





What type of professional should I seek in providing advice?





Most of your questions would be addressed by a probate attorney.





I live in California and I need advice regarding the following. My partner passed away this year and we shared a couple of things together. Bank account (checking) and a timeshare. He was still legally married. Who should file his 2007 taxes?





If he had a will, he disignated an executor or executrix to manage his affairs. If not, and if his assets are substantial enough to warrant it, the court may appoint an administrator to manage his affairs. If there is no executor or administrator, then for purposes of filing a tax return, it would most likely be filed by his ';personal representative'; which, in most cases, is the surviving spouse who may likely file a joint return.





What would happen if his taxes weren't filed?





If taxes are not filed and the IRS has income reported under his social security number, they will send notices requesting him to file a return (They likely don't know he is dead). If those notices are not responded to, they may likely prepare a substitute return for him based on the income they are aware of with no deductions. That would eventually go to collections which would likely contact his former spouse. If enough money is at stake, they would track it down, i.e., go after those who received his assets. If not, they would likely close the file.





Also, if the timeshare is sold, would the wife be entitled to any of the proceeds?





It depends on how the title to the real estate was held. If it was held as joint tenants with right of survivorship, his share would pass to you. If title was held as tenants-in-common, then his one-half would be in his estate and pass to those named in his will, or if there was no will, under California's intestacy laws (Which means his interest would likely go to the spouse).





If the timeshare is real estate and is held as tennants-in-common, it may require a probate to clear up the title. The value of the time share, if that is the only asset, may not justify the cost fo the probate. Without a probate, it would be impossible to transfer title to the real estate. However, nothing woud prevent the owners from using the timeshare. They just couldn't transfer it.





Some timeshares sell points rather than issue a deed. If it is points that was owned rather than a deed to real estate, that is a financial asset that can be transferred by completing the proper affadavit by the representative of the estate and would not have to go through probate.





Jim Kirby, CPA/PFS, CFP, CFS


I practice in California
The wife files the 2007 tax return as married filing jointly if she wants. If not, she files her return separately and the executor of the estate files his return, also as married filing separately. As far as your other questions, it depends on (1) his will and (2) whether the time share, bank account, etc., where ';community property'; under California law. His wife may be entitled to 1/2.
what it sounds like is your in a bit of a pickle, where he was still married but left no will, the wife might try to get the assets, you should contact an attorney to help with dividing estate, timeshare, misc, depending on the laws of california
The administrator of his estate, whoever that is, is responsible for filing a final return and administering any other assets he had. It could be filed jointly with his wife or separately; that will be the administrator's choice and if his wife doesn't like it, there is nothing she can do about it.





If he had a will, the administrator would be specified there otherwise it would be his nearest relative that wanted the job or you could ask to be appointed if nobody else was interested.





How was the bank account and time share titled? If it was as joint tenants, with you it will go to you automatically. The time share sponsor will want some paperwork to handle the transfer.





If a final return is not filed and there is money due, IRS could assess the tax against any person who got his assets to the extent they exceeded his final expenses and funeral costs. If there is a refund, it would go to his estate to be distributed to heirs.





My response is quick and dirty. If he had any relationship with an attorney, that is who you should call.