Real Estate And Your Estate Plan

By: Randall A. Denha, J.D., LL.M.

Bank accounts, life insurance, investments, furniture, jewelry, art and collectibles are among the many assets to consider when planning your estate. However, real estate may be among the most valuable and complex assets to consider. Real estate not only encompasses a primary residence, but also includes vacation homes and rental properties. When considering real estate in your estate plan, it is important to determine the best form of ownership for each type of property, which may vary depending on the type of real estate you own.

Primary Residence

Consider the highlights below and your overall estate planning objectives as you strategize your estate:

• The type of ownership of your primary residence should be carefully considered after reviewing the laws of the state where you reside. In Michigan and Florida, tenancy by the entirety offers married couples creditor protection from the creditors of one of the spouses (with a possible exception for federal tax liens) while still preserving relevant tax benefits. It also allows automatic transfer of ownership to the surviving spouse upon the death of the first spouse without court involvement.
• If you are single, transferring ownership to a revocable living trust may also allow you to retain the applicable homestead benefits with the added benefit of avoiding the probate process. If asset protection is a major concern during your lifetime, certain types of irrevocable trusts are best suited for your needs but may require you to give up some control of the property.
• Homestead protections and exemptions are a unique feature of Florida law, but can also involve highly complicated issues requiring a detailed analysis of your factual situation. Homestead status could be negatively impacted by transferring your primary residence to a trust, especially if you are married. It is important that you consult with your estate planning attorney before transferring the ownership of your primary residence. In Michigan, the homestead exemption applies to real property, including your house, condominium, co-op unit, mobile home, motor home, boat or any other watercraft, or manufactured home to which you hold title and that you use as your principal residence. The homestead exemption also applies to appurtenances to the property. If the property is outside a city, village, or recorded plat, the homestead includes up to 40 acres. If the property is inside a city, village, or recorded plat, the exemption includes one lot or parcel.

Vacation Home

• Owning your vacation home in your revocable trust can be advantageous to avoid probate administration (in-state or out-of-state) and the vacation home can pass to the next generation in a more efficient and timely manner.
• If estate and gift tax planning is one of your objectives, you could place your vacation home in a Qualified Personal Residence Trust (“QPRT”) and this would help reduce the size of your estate. If structured properly, the QPRT will freeze the value of your residence at the time you create the trust and result in significant estate tax savings.
• With a trust, you are able to establish rules for how the property is to be used and maintained, as well as designate what is to happen to the vacation home once you pass away. For some families, their vacation home has not only high monetary value but also significant emotional value, so this may be an ideal solution if you want to ensure that the vacation home stays in the family for generations with minimal family conflicts.

Rental Property

• Because rental property is an income stream rather than a residence, asset protection is usually the primary concern. As a landlord and owner of rental property, you face a higher probability of lawsuits arising in connection with the property because the occupants can change over time.
• A prudent option for your rental property is to transfer ownership to a limited liability company (LLC). If a renter gets injured on the property, sues the LLC that owns the property, and obtains a judgment that exceeds any property insurance you have, the renter can seek satisfaction of any claims only from the accounts and property owned by the LLC, not from your personal accounts and property or those of any other owners of the LLC. Ownership by the LLC may also protect the rental property from personal creditors.  LLCs are companies that allow individuals (or a group of people or even corporations) to own a company that ultimately owns other property — in our case, real estate. LLCs provide a form of protection for its owners against lawsuits and claims that may relate to the real estate owned inside the LLC. For example, if you own a building in an LLC and a tenant sues the landlord for breach of contract, the tenant will be suing the owner of the building, which is technically the LLC, not the individual owners of the LLC. While LLCs are a great way to hold real estate, they have costs that go along with them. You must pay to set up the LLC and pay an annual fee to the state in which the LLC is organized. You may also have to file a separate tax return for the LLC. But the biggest issue you might have with an LLC is that lenders will consider your real estate ownership as an investment property. Once you fall into the investment-property bucket, the lending rules change and get more expensive.

Given the various considerations for selecting a form of ownership, it is important to discuss your current and future real estate ventures with your trusts and estates attorney, so that you can protect your real estate assets for generations to come.