Thursday, August 15, 2013

Putting Your Home Into A Trust

At least in California, putting the family home into a Revocable Living Trust essential to avoiding probate and making sure there is an orderly succession to the beneficiaries.  

There are other reasons to transfer the home ownership to a trust.  You may want to reduce estate taxes.  You may looking for a little more protection against “creditors and predators”. You may also be looking for a way to gift real property to your adult children. You may want an orderly transfer of such property to a particular heir, free of interfamilial squabbles.

Putting your home into a revocable living trust.

In this arrangement, the title to your house is transferred to the living trust during your lifetime. Besides being the grantor of the revocable living trust, you may also name yourself trustee and beneficiary. This gives you the power to a) add other real estate to the trust, b) gift or sell the real estate held within it while you are alive, c) unwind the trust and put the real property back in your estate within your lifetime.

At your death, the trust becomes irrevocable. Control of the real property is then transferred to a named successor trustee, presumably one of your adult children.  

A revocable living trust will spare your home from probate in California and facilitate the transfer of title to your heirs. There may be some estate tax savings, and if you become incapacitated, another trustee can be chosen to manage the trust.

Putting your home into an irrevocable living trust.

The irrevocable variation offers you similar benefits, but the difference here is that you are giving up control – once you transfer real property into an irrevocable trust, it is out of your taxable estate and no longer yours. An independent third party trustee manages the trust on behalf of its beneficiaries. In this case, the transfer of real property is subject to gift tax because it is defined as a gift to the trust beneficiaries. Crummey withdrawal right letters may help in this regard – if they are sent to the beneficiaries, some of the amount of the gift may be shielded from such tax.

Putting your home into a CRT.

A charitable remainder trust is an irrevocable trust that helps an owner of a highly appreciated asset defer capital gains and income taxes and help a qualified charity. You make a gift of the real property to the CRT, which then sells it and arranges recurring income payments to you out of the managed sale proceeds. These payments last either for life or for a 20-year period. After you or your surviving spouse die, the charity receives the remainder of those sale proceeds.

By donating real estate to a charity via a CRT, you accomplish four things: you take the real property out of your taxable estate, you get an income stream, you avoid recognition of capital gains on what is presumably a highly appreciated asset, and you can take an immediate income tax charitable deduction based on a portion of the property’s value.

At first glance, it may seem like the charity is the “winner” here – not your heirs. To counter that, life insurance policies are frequently used. Trust assets may be used to purchase “cash value” life insurance, so that your heirs may one day receive tax-free insurance proceeds of equivalent or greater value than the donated asset.

Putting your home into a QPRT.

Qualified personal residence trusts allow you to gift your home to your children while you retain control of it for the term of the trust (typically 10 years). If your home seems poised to rise in value, the QPRT may lead to major estate and gift tax savings – it helps you transfer the home out of your taxable estate, thereby reducing its size. The value of the gift is the fair market value of the home minus “retained interest” (i.e., your right to keep living in it for X number of years, the value of which is derived from IRS calculations).

You have to outlive the term of the QPRT and then either a) move out of your house or b) pay your heirs fair market rent to keep living in it. If that doesn’t happen, the trust will be rendered invalid and when you die, the full market value of your home will be counted in your taxable estate. QPRTs were introduced in 1990, when the federal estate tax exemption was only $600,000. As it is currently above $5 million, some estate planners feel these trusts are less necessary today.