Real estate inheritance tax tips

Accomplish goal without adding children to title

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Apr. 11, 2011

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Accomplish goal without adding children to title

Benny Kass
Inman News™

DEAR BENNY: I am a retired widow who owns two homes. I have two children. Is it possible for each one to be a co-owner with me: one child on one house and the other on the second property? How would I go about doing this? Would that save anything on taxes, etc., for my two adult children? Would it cost me anything other than the filing fee for the property ownership papers of each of the homes?

My estate isn't huge, but the inheritance taxes would take up quite a bit of money. They would each naturally inherit the homes, but doing it the way I propose would give me the power to will a specific home to each child with no arguments over any value difference. --Evelyn

DEAR EVELYN: I get this question all too often, and my standard response is that there may be serious tax consequences when a parent adds his or her children to title on a house.

Let's say you bought the property for $50,000 and it is now worth $300,000. Your basis for tax purposes (a number that is important in determining capital gains tax) is $50,000. If you give half of the property to one of your children, his or her basis will be $25,000.

The basis of the person giving the gift (donor) becomes the basis of the gift receiver (donee). If you die, and the house is then worth $300,000, and assuming no improvements were made (and ignoring selling costs such as real estate commissions), the tax basis of your child will be $175,000.

How do I get this number? On your death, your child gets a stepped-up basis as of the date of death. Supposing you die when the house is worth $300,000, and since you own half of the house in my example, your child gets a stepped-up basis in the amount of $150,000. But your child also has a basis of $25,000; thus $175,000.

If the house is sold for $300,000, your child will have made a profit of $125,000 and will have to pay capital gains tax. At the current 15 percent federal tax rate, that means a payment of $18,750. Additionally, your state or local government may also impose a capital gains tax.

But if you die, and your children inherit the house, they get the full stepped-up basis. In our example, if the property is worth $300,000 on your death, their tax basis is $300,000. If they sell for that price, they have made no profit and thus have to pay no tax.

You are concerned about your children arguing about value. Quite frankly, they should each be happy that you are giving them anything. Parents do not legally have to give things to their children; they can spend all of their kids' inheritance.

You can prepare a last will and testament giving one house to each of your two children. If there are dramatic differences in valuation -- and if you want to treat your kids more or less equally -- you can adjust your will so that more money, or more furniture, etc., goes to the child who will inherit the less expensive house.

DEAR BENNY: My partner died and he had put the house in a trust. I have lived in the house for 24 years and paid the mortgages for two years after he died. The trustee hates me, and he is in France most months. I am the sole beneficiary of my partner's will, which includes everything. How can I get this through probate? Can I fire the trustee? The decedent also owes $30,000 in credit card bills. The trustee does not even return my phone calls. --Paul

DEAR PAUL: I can't give you any good answer, because the laws differ from state to state. However, if the real property is in a trust then its disposition is governed by the terms and conditions contained in that document.

You say that you were the beneficiary of the will. Are you also the beneficiary of the trust? That will be an important factor that the probate court will be considering when making its decision.

Bottom line: You need to obtain a copy of the trust agreement to determine what your rights are, and to see what can be done to either enforce your rights with the current trustee or to have that trustee removed. If those provisions are not contained in the trust document (they should be if it was prepared properly) your state law will dictate.

You can also file to probate the estate if there are any probate assets. As mentioned earlier, there is a distinction between a will and a trust. Currently, the property is probably outside of the decedent's estate, which is one reason why people create trusts.

However, when someone owns a revocable trust, the will simply "pours over" the probate assets into the trust. This is highly complex and you really should get yourself a lawyer who understands probate and trust law.

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