Real estate is a big investment; the transactions can be quite complex, and mistakes can be costly. Whether you are buying or selling residential or commercial real estate, you want to be certain your ownership interests are protected and you have considered the potential income tax and estate planning consequences.

Are you looking for information about buying or selling real estate? Our experienced real estate attorneys have compiled a list of our clients’ most frequently asked questions—and answers—to share with you here. If you have additional concerns or need assistance with a real estate matter, contact our office today to schedule a no-obligation consultation with a member of our legal team.

Q: If I have a real estate agent, why do I need a real estate attorney?
A: Realtors are prohibited from giving legal advice. In Montana, real estate agents use Montana Association of Realtors (“MAR”) standardized contract and lease forms, which may or may not be ideal for your specific situation. Our attorneys are able to evaluate and draft real estate contracts and leases which are tailored to your specific needs.
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Q: What is a homestead declaration?
A: By signing and recording a homestead declaration, you can protect up to $250,000.00 in value of your primary residence against creditors’ claims. Although this protection is available to every Montana homeowner, not everyone takes advantage of this benefit.  Our attorneys can draft your homestead declaration and ensure that it is properly recorded in the public land records.
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Q: Should I transfer the title of my rental or investment property to a limited liability company?
A: The following depends on your specific fact scenario. For liability purposes, we recommend holding title to your rental or investment property in a limited liability company (“LLC”). Our attorneys are able to form your LLC and draft documents to properly transfer your property to your LLC and we will work with your insurance agent to ensure that your rental or investment property is protected with the right liability insurance.
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Q: What are the tax consequences of selling real estate?
A: The tax consequences of a real estate sale depend on whether the property is an investment property or personal residence. Generally, gain from sale of a personal residence is exempt from taxes, due to the high level of gain exclusion on the sale of a primary residence. Gain from the sale of an investment property is taxed at a long-term capital gains rate if the property was held for more than one (1) year. Long-term capital gains tax rates could be as high as 20%, which is considerably lower than short-term or ordinary income tax rates.
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Q: Do I need a realtor to sell my property?
A: A realtor or broker is not required for the sale of real property, but we work with a lot of realtors to help our clients get a speedy sale accomplished. Our attorneys can walk you through every step of selling your real property, whether or not you have a realtor involved in the transaction. Both realtors and attorneys bring a special set of skills to the table for the client’s benefit.
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Q: What should I do if there is a cloud on my title?
A: If your fact scenario fits, we can assist you in filing a “quiet title” action. The end result of a “quiet title” action is to clear up the ownership on your real property in a way that otherwise could not be resolved.
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Q: Do I need title insurance for a real estate purchase?
A: We recommend that you either require title insurance be provided by the seller or you purchase title insurance. Our attorneys can review your title commitment and make sure you are aware of any potential issues or problems prior to closing.
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