The Real Estate Law Podcast

33 - Death and Real Estate - The Grim Details to Protect Your Assets

December 28, 2021 Jason Muth + Rory Gill Season 1 Episode 33
The Real Estate Law Podcast
33 - Death and Real Estate - The Grim Details to Protect Your Assets
Show Notes

Today, we’re talking about the unpleasant topic of death - and what it means for homeowners and real estate investors.  That means, we’ll outline some basics of making sure:

  • Your assets are inherited by the people you want to inherit them,
  • Your heirs don’t pay more taxes than they have to, and
  • The transition is as clean and simple as possible.

This particular conversation needs the disclaimer.  We’re talking about some basic concepts, but this isn’t legal or financial advice.  If you hear something that catches your attention, talk over your situation with a local attorney.

The first part of estate planning is making sure your assets get passed to the right people.  To accomplish that, there are six general ways to go about it.

  • Using a Will: Unless the deed contradicts your will, you can always name your heirs is a will.  Done correctly, you can impose a creative range of conditions, alternates, and restrictions on the inheritance.  This method creates the most work up front and potentially more work to administer, but it’s the most flexible.
  • By a Joint Tenancy: Many deeds will create a “joint tenancy” right on them.  This creates automatic inheritance by co-owners with the “last man standing” to gain full ownership.
  • By Life Estate: Lesser used, you could create a life estate on a deed.  This is when you keep ownership during your lifetime but designate the heir in the deed itself.
  • By Revocable Trust: Like a will, this requires some up-front work but allows for greater flexibility in designating heirs.  Unlike a will, the trust will operate automatically.
  • By Irrevocable Trust: This is the same thing as a revocable trust, just that it’s irrevocable.  Whether it’s worth taking on an irrevocable trust depends a lot on your specific financial situation.
  • By Business Entity: You can also pass along interest in your LLC, partnership, or corporation.  For this to work well, make sure the business documents, your will, and any other estate plan are not contradictory.
  • (Default): If you don’t have a will and your deed doesn’t contain a joint tenancy or life estate, than your heirs will be determined by the court.

Tax planning for real estate investors is a tension between capital gains tax planning and estate tax planning.  Generally, if you own an asset until you die, it’s part of your estate and could be subject to the estate tax, but it gets  the benefit of a stepped up basis.  If you give away ownership during your lifetime, it’s usually not part of your estate (avoiding the estate tax) but doesn’t get the benefit of a stepped up basis.

With the current federal estate tax threshold over $11M, the avoidance of estate tax has become important to less people.

The takeaways:

  • There are several, easy ways to craft your estate.
  • For real estate investors, the stepped up basis is the key benefit for tax planning.  However, this has a tension with the estate tax.  It’s also a moving target subject to changes in laws and tax rates.

#estateplanning #realestatelaw #realestatepodcast #revocabletrust #irrevocabletrust #taxplanning #wills #nexthome

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