How to Specify That the Estate Will Continue to Make Payments on a House Until It is Sold
Key takeaways
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For many families, deciding what to do with a home can often be the most complex part of an estate plan: A house is potentially worth a significant amount of money, can be complicated to inherit, and may also be wrapped in memories and emotion. For these reasons, it is particularly important to come up with a specific strategy for the role a home plays in an estate plan.
3 things to know before getting started
1. Input from everyone involved can make planning easier
To prepare for a smooth and efficient transfer of a home, start by thinking about your goals and your financial situation. First ask: What would you like to see happen with the house? After understanding your goals, be sure to discuss your wishes with your family.
Your children may have different ideas about whether they would want to live in, sell, or keep the property for investment purposes. It can be difficult to have these conversations, and you may want to have someone neutral help facilitate the conversation, but it is very important.
For example, consider a couple who was planning to leave a vacation home to their 2 children equally so that the children could continue the long tradition of family vacations. However, one child lived far away and already owned a vacation home in that area. Leaving the home equally would have created issues regarding maintenance cost, property taxes, and upkeep. If the siblings decided not to share the house and executed a transfer of ownership, it might have increased taxes and created transaction costs. Disagreement on whether to continue shared ownership could also have caused hurt feelings and disrupted what was otherwise a good relationship. A family conversation helped them realize that a shared inheritance didn't make sense.
2. Your heirs could end up owing money
If the person who inherits the home doesn't want to keep ownership of it, they may incur legal fees, taxes, and other transaction costs. In addition, several states have estate tax exemption limits far below the federal level. If the value of the home exceeds that limit and there aren't other assets from the estate available to pay the taxes, the heir may face a state estate tax bill and may have insufficient funds to pay it. That could force a sale of the home or force the heir to seek financing options to pay the bill. If they do sell the house, it will be taxed based on the value at the time of the original owner's death.
3. The mortgage might become due
Most mortgages have a "due on sale" clause that may be triggered at death. If so, other liquid assets in the estate would need to be used to pay off the debt, the inheritor would need to qualify for a mortgage on their own, or the home would need to be sold.
6 options for passing down your home
Let's look at a number of different ways to make passing down a home as smooth as possible.
1. Co-ownership
One common idea that people have about passing the home to kids is seemingly simple: Just add the heirs as co-owners on the current deed. If the deed lists someone else as a joint tenant, they will become co-owners at the time the deed is changed, and they will automatically take ownership of the home at the time of the original owner's death.
There are some downsides to this approach, however. First of all, if a child is added as a co-owner, there are gift tax considerations. There is a limit to how much someone can gift another person without paying a gift tax, both yearly and in a lifetime. When a house is given as a gift through co-ownership, the portion transferred is considered a taxable gift and counts toward the lifetime exemption, so it has to be reported for gift tax purposes. Say a single parent adds a child to the deed, the parent would need to report 50% of the value of the home as a taxable gift (based on the fair market value of the home at the time of the transfer).
Secondly, gifts made during a lifetime are subject to carryover cost basis (the value of the house for tax purposes). Thus, the cost basis used for capital gains tax purposes doesn't get a step-up at the time of death—instead, the child may get a larger tax bill on the portion of the house that was given to them if they eventually sell the house after the co-owner's death.
Finally, as co-owners, the home becomes an asset of the child, creating several potential issues. First, if the child runs into financial trouble, gets divorced, or has other issues, your home may be put under a lien or become subject to other action. Second, the co-owner would need the child's permission to sell the home, take out a new mortgage, or refinance an existing one. And finally, the child may decide they would like to sell the home, which can create challenges.
2. A will
A will can be used to pass on a home. This process helps ensure that the owner decides who inherits the property. However, assets that transfer through a will still pass through the probate process, which can be time-consuming and expensive. In addition, a will is a public document, so anyone can review the decedent's assets and see who inherited them, so this can create a privacy concern.
3. A revocable trust
A revocable trust is a legal structure that allows the "grantor" or "trustee" to retain control over their assets during their lifetime, as well as specify exactly how and when their assets pass to their beneficiaries. After the trustee's death, the trust acts as a will substitute and enables the assets to be privately and quickly distributed without going through the time and expense of the probate process. This will allow the trustee full control and use of their home during their lifetime while providing for efficient distribution at their death.
Due to the complexity of trusts and the variation in state-level rules, it is important to work with a professional to set up a trust, which costs money, but may be the only way to help ensure that the trust works effectively. It is also important to remember that it may be necessary to change the titling of your assets for the trust to function as intended.
Finally, a trust may be particularly beneficial for families that own properties in more than one state. Without a trust, an estate may pass through probate in multiple states. "For many of my clients, one of their main goals is to pass down assets to beneficiaries without probate, and so a revocable trust is a core component of their estate plans," says Terri Lyders, Vice President, Advanced Planning at Fidelity.
4. A qualified personal residence trust (QPRT)
A QPRT is a way to move a primary or vacation residence out of your estate at a reduced gift tax cost. With a QPRT, the home is transferred to the trust right away, but it allows the original owner to retain the right to live in the home for the duration of the QPRT term. During that time, they are responsible for rent, maintenance, taxes, and other aspects of ownership. The trust has an end date after which ownership of the house is transferred to the beneficiary (generally children or a trust for their benefit) and the original owner no longer has the right to occupy the house (although a lease may be negotiated with the beneficiary).
In order for this strategy to be effective for tax purposes, the original owner must outlive the term of the trust. Otherwise, if they die before the trust terminates, the value of the home is included as part of their taxable estate and could be pulled back into the estate. While a QPRT may be used for a primary residence, it can be challenging for a person to lose the right to occupy their home, or pay rent to do so, and thus QPRTs may often be used for vacation homes.
Two big benefits of a QPRT include the reduced gift tax cost of the transfer (because the owner retains the right to live in the home for a period of time and keeps some of the value of the house), and that the value of the home is frozen for estate tax purposes at the time the trust is created. This means that for estate tax purposes, the value of the home is established at the time it enters the trust—and future price appreciation won't affect the estate's tax bill. For a family facing estate tax issues, this strategy may help to limit taxes in the event that the property value increases over time.
Tip: A property that is subject to a mortgage can be difficult to handle from a gift tax perspective, and therefore it is often suggested that any debt be paid off prior to the transfer to a QPRT.
5. A beneficiary designation—a transfer on death (TOD) deed
Some states offer a TOD designation on a deed which essentially names a beneficiary for that property. With a TOD designation, assets pass outside probate, so it's quick and private, and the heirs still get a step-up in basis for tax purposes, which means the value of the house is adjusted to current market value. It may also be less expensive than setting up a trust.
There are some drawbacks to a TOD designation. It only allows individuals or charities as beneficiaries, not a trustee under a trust. That means that if a child is still young at the time of the transfer, they would directly own the home, which may not be practical. There is also no contingency, so if the child named as beneficiary dies before the original owner, there is no provision to skip a generation and pass the asset to their children—the TOD deed would have to be updated by the owner. Additionally, if the home is passed to an adult receiving government benefits, it could affect their eligibility.
Tip: TOD deed options are limited by state law, and many states do not offer this option at all. Check with your attorney or tax advisor to determine whether this option is available and would be appropriate for your circumstances.
6. Through selling
If it's unlikely that children will want the home, consider selling it and renting a home later in life. Issues like maintenance, health, and lifestyle may be more important than the financial considerations here, but be sure to consider the tax impact of this decision.
Current federal tax law allows a capital gains exclusion of either $250,000 (for an individual) or $500,000 (for a married couple filing jointly) on the sale of a house, provided that they have lived in that house for 2 of the previous 5 years, and that the home meets the residency requirements. Gains above that amount are taxed. Inheriting a property comes with a step-up in basis (which means it's reassessed at current market value) potentially eliminating capital gains tax.
The bottom line
A home can be the most valuable asset in an estate. If you don't take any action and die without a will or having made any other arrangements, your assets will pass according to your state intestacy laws, which may or may not reflect your wishes. This may include going through probate—a process that is potentially expensive, public, slow, and complicated.
The transfer of real estate assets can pose unique legal, tax, and emotional issues for a family, so it may be beneficial to work with a professional to help protect yourself and your loved ones. It's important to come up with a plan that makes sense for you, and your heirs, and to create an efficient strategy to execute it.
Next steps to consider
Get help
Make an appointment to talk with a Fidelity advisor.
Source: https://www.fidelity.com/learning-center/personal-finance/estate-planning
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