When an elder who retains a life estate (and has transferred a remainder interest to their adult children) is thinking about selling the house, it’s time to sharpen pencils and start doing the tax calculations.
NJ.com’s recent article, “What a ‘life estate’ means for your home,” discusses how this estate planning strategy works. A life estate gives the holder the legal right to the possession of real estate.
The owner of the remainder interest also has an ownership interest in the property. However, the life estate holder has the right of possession.
The life estate holder can live in the property or rent it and keep the money. He or she is responsible for the maintenance and expenses of the property. At the life estate owner’s death, the life estate expires, so it can’t be transferred to someone else.
The tricky part comes when you’re a life estate holder and living in the home and it is sold: both the life estate holder and the remainder interest owner must agree to sell, because the buyer will want to take a 100% ownership interest and possession of the property.
The IRS has created life estate and remainder interest tables to figure out the value of each interest. The way it works, in general, is the older the life estate holder, the less ownership interest he or she will have and the more ownership interest there will be for the remainder interest holder.
If the home is sold, the proceeds must be divided between the life estate holder (usually the parent) and remainder interest owners (the child), according to the IRS tables. If the home has appreciated considerably in value, there may also be capital gains taxes that will be due.
The IRS rules state that if the life estate owner has lived in the home in two of the last five years before the home is sold, he or she can exempt up to $250,000 of capital gains from tax with the primary residence exemption. However, the remainder interest owner can’t use that exemption because he or she isn’t entitled to possession—they can’t claim it as a personal residence. As a result, the adult children who own the remainder interest will pay an unexpected capital gain upon the sale of the home.
Before transferring any interest to children or to a trust for the benefit of children, it is wise to speak with an experienced estate planning attorney to make sure that the transaction is done properly and to avoid paying more taxes than necessary.
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