• Skip to navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

American Academy of Estate Planning Attorneys

AAEPA, Inc

Find a Member Member's Login
Call Today (800) 846-1555
  • Membership
    • Membership Membership
    • submenu
      • Why Join?
      • Member Requirements
      • Become A Member
      • Meet the Team
  • Estate planning software
  • Education
  • Practice management
    • Practice management Practice Management
    • submenu
      • 11 Essential Systems
      • Coaching
      • Law Firm Marketing
  • Resources
    • Resources Resources
    • submenu
      • Live Training
      • Blog
  • Contact Us

Basics of Estate Planning: What to Know Before Funding Real Estate to a Trust (Part 2 of 4)

Home » Estate Planning » Basics of Estate Planning: What to Know Before Funding Real Estate to a Trust (Part 2 of 4)

This is another in a series of blogs on the basics of estate planning. Last week, I discussed how the transfer of real estate into a trust could trigger issues regarding Homeowner’s Insurance and Title Insurance. There are many other issues to consider. This week, I’ll look at tax and asset protection considerations.

Taxes

  • Capital Gains Tax: Transferring a residence to a grantor trust (like a revocable trust) does not interfere with the grantor’s $250,000 (or $500,000 for joint returns) capital gains exclusion, provided the property otherwise qualifies.
  • Deductions: After the property is transferred to a grantor trust, the grantor can continue to claim deductions for mortgage interest and property taxes paid by the trust.
  • Property Tax: Some states offer a homestead exemption that serves to reduce property taxes for homeowners. This exemption can be very valuable. If your state offers this exemption, check to be sure that transferring a residence to a trust does not interfere with the exemption. Also, think about how property tax reassessment works in your state. Some jurisdictions don’t have periodic reassessment of property taxes—only a reassessment upon the transfer of the property. If the property has appreciated in value, make sure that transfer to the trust will not trigger property tax reassessment.
  •  Estate Tax: When the property is in a revocable trust, it is included in the estate of the grantor for estate tax purposes. As a result, there is a step-up in basis (in most cases) to the date of death value due to Section 1014 of the Code. If the property is in an irrevocable trust, this same result would occur, as long as the property is included in the estate of the grantor. This may be accomplished by giving the grantor a general or limited power of appointment, a right to income, or other powers described in Sections 2036 through 2038.

Asset Protection

  • Tenancy by the Entirety. In some states, property held in “tenancy by the entirety” is given an extra level of protection from creditors. A few states allow property to maintain its “tenancy by the entirety” status in a trust. But, in most states, transferring such property to a trust destroys the tenancy by the entirety protection. Prior to transferring tenancy by the entirety property to a trust, consider:
  • Your state’s rules for allowing a trust to hold property in tenancy by the entirety, and
  • Whether any loss of asset protection is worth the advantages offered by funding the property into the trust.
  • Bankruptcy. Debtors’ homes are given preferential treatment under bankruptcy law. This is called the “debtor’s homestead exemption.” This exemption varies from state to state. For example, a Florida resident can protect his or her home – no matter the value – from creditors in bankruptcy. In other states the exemption may be limited to $100,000 or less. In some states, however, transferring a home to a trust means losing the homestead exemption in bankruptcy. If bankruptcy is a possibility, it is imperative to know your state’s bankruptcy law before deciding whether to fund the home into a trust.The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) significantly altered the availability of homestead exemptions. Under BAPCPA, the exemption doesn’t apply to a greater extent if they have moved within 1215 days of bankruptcy. The amount of equity they had in their residence 1215 days prior is still protected. If they had no prior residence, then they would be limited to $125,000, adjusted for inflation since 2005 (currently over $160,000).Example: John owns a primary residence worth $150,000. There is no mortgage. Three years before filing bankruptcy, he buys a new primary residence worth $500,000. There is no mortgage. John can only take advantage of the bankruptcy exemption allowable, up to the equity in his home as of 1215 days prior to the bankruptcy filing, or $150,000.

Amazingly, there are still more issues to look at! Next week, we’ll look at a number of additional concerns you’ll want to be aware of before you transfer real estate to a trust.

In other upcoming blogs, I’ll discuss more on the basics of estate planning.

Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

  • Author
  • Recent Posts
Steve Hartnett
Steve Hartnett
Director of Education, American Academy of Estate Planning Attorneys
Steve Hartnett
Latest posts by Steve Hartnett (see all)
  • Double Your Gifting with Spousal Gift-Splitting - January 11, 2022
  • Tax Planning for 2022 - December 28, 2021
  • Donor Advised Funds: Too Good to Be True? - August 10, 2021
SHARE

About Steve Hartnett

Director of Education, American Academy of Estate Planning Attorneys

Primary Sidebar

Subscribe to our blog

Recent Posts

  • Avoid Unnecessary Family Disputes with a Letter of Instruction
  • Understanding Undue Influence – Part I
  • The Top 3 Estate Planning Must-Haves
  • How Do I Trust Thee… Part III
  • Time for a Mid-Year Check-In?

Categories

  • Academy Girl Friday (33)
  • Client Services (239)
  • Coaching (33)
  • Consumer Advantage (3)
  • Counseling (21)
  • Elder Law (5)
  • Estate Planning (930)
  • Estate Planning Documents (5)
  • Estate Planning Education (201)
  • Financial Analysis (3)
  • Financial Services (1)
  • General (20)
  • Law Firm Marketing (282)
  • Law Firm Net Revenue (7)
  • Law Firm Staffing (99)
  • Law Firm Technology (45)
  • Law Firm Web Tips (186)
  • Leadership (191)
  • Legal Education (651)
  • Marketing Tools (2)
  • Medicaid (1)
  • Member Services (1)
  • Owners Compensation (1)
  • Peak Performer Focus (1)
  • Practice Building Calls (1)
  • Practice Management (497)
  • SEO/Social Media Support (3)
  • Software (6)
  • Strategic Planning (10)
  • Uncategorized (15)

Footer

logo of American Academy of Estate Planning Attorneys

About Us

  • Meet the Team
  • Site Map
  • Legal Notice
  • Privacy Policy

Explore Our Services

  • Coaching
  • Estate planning software
  • Events
  • Legal education
  • Marketing
  • Web and SEO

Keep in Touch

Mon-Fri

9444 Balboa Ave. Suite 300

San Diego

(800) 846-1555

info@aaepa.com

Take Back Control of Your Business and Your Life

+

footer section | American Academy of Estate Planning Attorneys

© 2022 American Academy of Estate Planning Attorneys, Inc All rights reserved.

We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept All”, you consent to the use of ALL the cookies. However, you may visit "Cookie Settings" to provide a controlled consent. Don't sell my personal information.
Cookie Settings Accept All
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checkbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
Save & Accept