Transferring a house from a trust

 Dear Liza: My grandfather died in 2008. My mother is the first successor on the trust. We did all the post administration for the trust or so we thought. I recently read that my mother should have filed a deed to get the house placed into her name since that is what the trust called for. We have not done this. My question is the following…My mother wants the house to go to me, her son. What process would we have to do in order to get it from the trust to me? Your grandmother can file the deed she didn’t file after your grandfather died, getting the house into your grandmother’s name, as Trustee of the trust created by your grandfather. Once that’s done, her ability to give that house to you during her lifetime depends upon the terms of the trust your grandfather set up. She may be able to give it to you during her lifetime, in which case you will receive it at the value that it had in 2008, when your grandfather died.  She may only be able to transfer it to you at her death, in which case you will inherit it at the value the house has at her death.  She may not be able to give it to you at all, because, as you said, the terms of your grandfather’s trust became irrevocable at his death. I would advise you to see an estate planning attorney in your state to review your grandfather’s trust and advise your grandmother on the best strategy to accomplish her goals.

As for that mortgage, if you get the property transfer completed, you’ll have to request that the lender assume the loan in your own name, which they may or may not do, that depends on their calculations and your credit history.

Capital gains taxes on sale of house

Dear Liza: My daughter is on my deed as joint tenant with me.  If I die and she decides to sell the house,  will she have to pay capital gains taxes? When you die, your daughter will own the whole house, without having to go through probate.   If she then decides to sell the house, she will have to pay capital gains on the increase in value on the one-half of the house that she owned before your death.  The one-half of the house that she inherited from you will get a new tax basis for capital gains purposes, equal to the value of that one-half of the house when you died — this is called a ‘stepped-up’ basis.

How the Estate Tax Works

Dear Liza: My dad just received about $200,000 in cash from his recently passed-away friend’s trust.  I wonder how he should file his tax for 2012?  I found several documents discussing about inheritance tax exemption being $5 million.  Does that only apply to family members and spouses? I love getting questions with clear answers! Your father’s inherited gift from his generous friend does not affect his income tax return for 2012.  Gifts are not ‘ordinary income’ under the tax code.  He gets that money TAX FREE.  It doesn’t matter what his relationship was to the generous friend.  But, if his generous friend’s estate was over the applicable federal exclusion from the estate tax ($5.12 million in 2012), his estate would have had to pay estate tax due.  That’s why it’s called the ‘estate tax’ and not the ‘inheritance tax’–the tax, if over the amount excluded from federal estate tax,  falls on the estate of the decedent, not on those who inherit the assets.

Buying Mom’s House: Be Careful

Dear Liza,  The only asset funding my Mother’s Trust is her primary residence. However, she recently moved from CA to live with me in WA. My sister would like to purchase the home but doesn’t have the full amount. She would pay a down payment of $150,000 which would assist with my Mother’s caregivers and in-home health care. The balance approx. $150,000-$200,000 would be recorded as a Deed of Trust naming the Trustee of the Trust as the beneficiary.  Would this affect  or invalidate the Trust in any way? I have to give you a sort of lawyerly answer on this one: probably this is just fine, but you should have an attorney take a look at the trust to make sure that your mother, as the grantor of the trust and current trustee of the trust, has the power to sell trust assets and the power to loan trust assets.  A well-drafted trust would certainly permit this, but I’ve seen trusts that aren’t well drafted to be sure. Also, sales of assets between family members should be for fair market value (in other words, your sister should be willing to pay what a third-party buyer would be willing to pay). Otherwise,  your mother would be making a taxable gift to your sister of the difference between that fair market value and the price she actually paid.  Your mother should get the house appraised to document this value before the sale occurs. Finally, the interest rate on the loan must be at least the applicable federal rate (AFR) for loans of that sort in the month the loan is made (this is published monthly by the IRS.) If the loan’s interest is too low, the difference between that rate and the AFR is also considered a taxable gift from your mother to your sister.

Do I Need a Living Trust?

Dear Liza: I am a 61 single retiree who has a single family home, an IRA, life insurance and a small pension. With my siblings as beneficiaries to these instruments. Is a living trust/will needed anyway? So, it’s true that if you have named beneficiaries for your IRA, life insurance and pension, those assets will go to those beneficiaries and your Will or Living Trust would have nothing to say about that part of your estate plan.  But, here’s the thing–in most states you cannot name a beneficiary for a house.  In those states, the only way to leave your house to certain people and avoid having to go through probate to do it, is to set up a living trust and transfer your house to that trust.  Click here for a list of the states that do permit the transfer of a house by naming beneficiaries on a deed–called a transfer-on-death deed. Sadly, California is not one of them.

Giving away that family cabin

Dear Liza: I am divorced and own a second vacation cabin that I want my children to have when I die.  Is there a way for me to retain rights, ownership and control while I am alive and of sound mind but pass the property to them when I die that doesn’t have a bunch of overwhelming taxes?  Yes.  Upon your death you can leave the kids the cabin either outright or in a trust. If you leave it to them outright, as tenants in common, each will own 1/2 and can leave their half to whomever they choose when they die. If you leave it to them in trust, you can control how it’s managed and how it would be transferred upon their deaths (as in maybe it has to go to their children or be sold to other family members.) The tax treatment of the gift is that it will go to them free of tax — if there’s a tax to pay, it falls on your estate, but they inherit what’s left free of tax.  The capital gains tax basis on the property will be what it is on your date of death, so if they sell it someday, they’ll owe tax on the gain in value from your date of death to the date of sale. I don’t know what state you live in, but in California, where I practice, a gift from parent to children is also excluded from reassessment of property tax, so they get the property tax rate you were paying.

Planning for incapacity

Dear Liza: My dad recently passed away and he and my mom had no will.  I am the only child and we have had all the bank accounts changed to my moms name and me as beneficiary but I don’t really know where else or what else (will or power of attorney) I should get.  Now that your mother’s just got you to take care of her if she gets sick, you should absolutely get her to sign a Durable Power of Attorney for Property and an Advance Health Care Directive. Both documents can name you as her Agent, the person who can pay her bills or make medical decisions if she’s unable to do so.   You said that she’s healthy now, and that’s great, but all of us get sick now and then and accidents do happen.  A Will is also a good idea, since that will make it easier for her to leave you her assets without your having to go through probate. (When one spouse dies, probate’s not usually necessary.)  All of these documents can be done inexpensively at www.nolo.com. Here’s the link to the Durable Powers of Attorney forms.

Beneficiary Designations Rule

Dear Liza: I live in the state of Oklahoma, my mother passed away unexpectedly. There was a $9,000.00 burial policy and a $12,000.00 life insurance policy, both policies were paid for by her but in my brothers name. Does my brother get to keep the life insurance policy?  Yep. He does. Your mother named him as the beneficiary for those policies, so he gets to keep the money.  Beneficiary designations like this trump whatever your mother’s Will said about her other assets.  If you take this to the probate court, they’ll tell you the same thing. Sorry.

Pension benefits

Dear Liza: My Dad passed away last year in the month of November.  Prior to Daddy’s death, he was receiving monthly pension benefits.  Once my step-mother notified the insurance company that Daddy had died, the company immediately withdrew his pension benefits from their checking account in the month of December.  Up to this date, my step-mother hasn’t been able to receive Daddy’s pension benefits.    Can the insurance company refuse to give my step-mother my dad’s pension benefits? Yes, they can. Pensions often terminate upon the death of the participant. Unlike an IRA or 401-K, traditional pensions are often promises of a monthly benefit for the lifetime of an employee, based on the length of time that employee worked for the company.  (IRA’s and 401-K plans allow an employee to save their own money during their peak earning years on a tax-deferred basis, so that they can withdraw the money after they’ve retired.  If they die with money left in those accounts, they can leave this money to a named beneficiary.)  Sometimes, a pension plan allows an employee to elect to take less during their lifetime so that their surviving spouse can receive benefits during his or her lifetime, but not always. If your father had a plan that only paid him a pension during his lifetime, your stepmother wouldn’t be entitled to any benefits under the plan.  Perhaps your stepmother can get clarification of how the pension worked from your father’s former employer.

Capital gains and lifetime gifts

Dear Liza,
My dad has transferred $13,000 in stock for several years to me.  I would like to transfer some stock to my son who in turn would like to sell that stock to help purchase a house. Who will owe the capital gain taxes?  For example say the stock was worth $20 a share when transferred to me but when I transfer to my son it is worth $40 a share.  Gifts given during life (from your father to you; from you to your son) retains the donor’s basis: so, for capital gains purposes, the stock is still worth $20 a share when you give it to your son, because that’s what the basis in the stock was when your father gave it to you.  If you give it to your son, and he sells it, he will pay the capital gains on the sale.