PBM
When to sell your parents’ home: The tax consequences
Patricia Bloom-McDonald • Nov 02, 2020

Let’s say you’ve known for years that you are inheriting your father’s home when he dies. Hopefully, he has a Last Will and Testament that indicates clearly that the house will go to you. Now let’s assume that your father is no longer living in the house and doesn’t need the money from the sale. Perhaps he just moved to assisted living and has long-term-care insurance to cover the costs. Or maybe he just moved in with you and has enough retirement savings to cover his needs. So when is the best time for your dad’s house to be sold: While he is still alive or after he dies?

Let’s consider the tax implications of the sale.

As long as your dad has lived in his house for two of the last five years, it’s considered his primary residence under the Internal Revenue Code. That means that he can take advantage of the federal exclusion on capital gains tax. An individual taxpayer does not have to pay capital gains tax on the first $250,000 gain in the value of his or her home. A married couple does not have to pay capital gains tax on up to $500,000 in gains. Assume the house was purchased for $25,000 in 1977. It’s now 2020 and it’s worth $825,000. So far, that sounds great. Your dad stands to make an $800,000 profit. He won’t have to pay capital gains tax on the first $250,000 in gains. But the tax will be applied to the $550,000 profit after the exemption. Also, in some states additional taxes would be owed. Keep in mind that the situation looks different if your dad’s house is worth a lot less money, or if both of your parents are still alive. For a house with a gain of $250,000 or less ($500,000 or less for a married couple), your dad will avoid paying capital gains tax entirely if all conditions are met. Then, the amount of tax due on the sale could be relatively small, so your dad could choose to sell now and leave the proceeds to you at his death.

Selling after death

When you sell the home after your dad passes, another highly beneficial rule comes into play — the step-up in basis at death rule. Under that rule, when a home is inherited after someone dies, the property value is “stepped up” to the fair market value at the time of death. Take the example of your dad’s house. At his death, the Internal Revenue Code views the $800,000 gain in property value as the value of the property, rather than a taxable profit. That means you keep the money in your pocket when you sell it. Generally, with a house that is likely to show a large gain you are better off encouraging a parent to leave the house to you so you can sell it when he or she passes.

Other things to keep in mind If you wait to sell your dad’s house after he dies, the probate process could take several months or more. You can’t sell the house until it’s distributed to you after probate. Depending where you live and how much time passes, that means the house could increase in value before you sell. You will have to pay capital gains tax on the profit, because at that point your dad’s house is treated as your second home and doesn’t qualify for the federal exclusion on a primary residence.

There are a few ways to speed up this process, if you have the chance to help your parents make plans during life. If your dad leaves his home to you in a revocable living trust that names you as the beneficiary, you won’t need to go through probate, can avoid some estate taxes and are in a position to sell the home right after your parent(s) dies. Another option is a transfer on death deed (Life Estate Deed), which is only available in certain states. This allows you to inherit the property right away, without going through probate. But you will still may have to pay taxes on the house.

Using a Credit Card When You Have a Special Needs Trust

25 May, 2023
A special needs trust (SNT) allows you to meet your needs while receiving government benefits, such as Medicaid/MassHealth and Supplemental Security Income (SSI). When you have a special needs trust, you can use it to pay for goods and services government benefits do not cover, such as therapy, education,and housing. Since receiving income directly from your trust would jeopardize your eligibility for benefits, your trustee cannot give you cash from your SNT. When you use a credit card for permitted transactions, and your trustee pays off the balance with funds from your trust, these payments to a credit card company are not considered income. An SSI or Medicaid/MassHealth recipient who is capable of managing their own affairs can therefore use a credit card to make small purchases, and the trustee of the special needs trust need not micromanage every transaction. In the past, beneficiaries of SNTs sent their bills to their trustees for payment. Today, an individual with an SNT who qualifies for a personal credit card may find that using a credit card is more convenient. Credit cards have several benefits. Using a credit card to manage payments from your special needs trust allows you to maintain independence, gain access to some of the advantages of a credit card, and easily keep records while preserving your eligibility for Medicaid/MassHealth and SSI. Although credit cards can help people manage their special needs trusts, there are also several important restrictions and considerations to keep in mind. Consult with a special needs planner to ensure all transactions are acceptable under the trust's rules and comply with government regulations. The Benefits of Using Credit Cards When You Have a Special Needs Trust If you have a special needs trust, using a credit card has many benefits, including: Independence : Allowing you to maintain your independence. You can use your card to make qualifying purchases yourself. Your trustee does not have to make the transactions for you. Access to the Typical Advantages of a Credit Card : Using it responsibly can help you establish or build credit history, which may be important for your future financial needs. Record-Keeping : Credit cards provide easy record-keeping and a convenient way to monitor transactions from your special needs trust, which can also help special needs trustees fulfill their duty to maintain records. When you use your card, your trustee can observe your purchases and ensure that all expenses are allowable under the trust’s rules. Your statements can help your trustee keep track of funds leaving the trust. Benefits Eligibility : While adhering to Medicaid/MassHealth and SSI’s income and asset limits, you can access funds from your SNT. Credit cards can help prevent your trustee from accidentally providing you with cash payments that could affect your eligibility for government benefits. Considerations When Using a Credit Card for Your Special Needs Trust While you can use a credit card to access funds from your special needs trust for certain transactions , restrictions apply. If your trustee sees a charge on your card that could affect your benefits eligibility , they can flag it for review. You cannot use your credit card to pay for food and shelter, which SSI would cover. When administering your funds, your trustee must ensure that any expenditures are for your sole benefit if you have a first-party special needs trust. While using a credit card is appropriate, you should not use a debit card. Debit cards are considered cash income. Best Practices When using a credit card for a special needs trust fund, remember several best practices. Choose a card with low fees and interest rates. Set a clear budget and monitor transactions regularly. Keep thorough records and receipts of expenses. Consult with your special needs planning attorney. A special needs planning attorney can help you navigate the rules that apply to your trust and understand how to use a credit card to preserve your Medicaid/MassHealth and SSI eligibility. 

How an ILIT can help offset estate taxes

12 May, 2023
With the Federal estate tax exemption possibly about to be lowered, it may be time to think about steps you can take to keep your estate from being taxed. An irrevocable life insurance trust allows you to pass on money to your heirs while avoiding both the federal estate tax, as well as any applicable state estate tax which is currently $1 million in the Commonwealth of Massachusetts. Senate Democrats have proposed lowering the current estate tax exemption from $11.7 million for individuals and $23.4 million for couples to $3.5 million for individuals and $7 million for couples. While it is unclear if this proposal will pass, it is likely that some change to the estate tax is coming. Even if Congress does not take any action, the current rate will sunset in 2026 and essentially be cut in half, to about $6 million per individual. In the Commonwealth of Massachusetts, the current estate tax exemption is $1 million for individuals and is taxed at dollar $1.00. A proposal to raise it to $3 Million and the tax to start at $3 Million (not at $1.00) has been submitted in the legislature but has not yet been voted on or enacted. One way to make up for any estate tax your estate may have to pay is by setting up an irrevocable life insurance trust [ILIT]and funding it with a policy that has a death benefit that would pay your heirs some or all of the amount your estate will be taxed. If you purchased such a life insurance policy directly, it could end up being taxed as part of your estate. But if a trust owned the policy, it could pass outside your estate. While a life insurance trust can be highly beneficial, it is also complicated to set up and maintain properly. The following are some of the requirements: Trustee . If you are setting up the trust, you cannot also serve as a trustee. If you are the trustee, you have control of the trust, which could lead to the trust being included in your estate. You will need to name another trusted person or financial institution to act as trustee. Policy ownership . The trust must own the life insurance policy. If you transfer an existing policy to the trust and die within three years, the policy will still be considered a part of your estate. To avoid this risk, the trust can purchase a policy directly rather than receive an existing policy. Premiums . You need to transfer funds to the trust to pay the policy premiums, which creates an issue with gift taxes. A transfer to a trust is usually not subject to the $15,000 yearly gift tax exclusion. For a gift to qualify for the exclusion, the recipient must have a "present interest" in the money. Because a promise to give someone money later does not count as a present interest, most gifts to trusts aren't excluded from the gift tax. To avoid this, you can use something called a “Crummey” power which gives beneficiaries the right to withdraw the funds transferred to the trust for up to 30 days. As part of the process, the trustee needs to send them a letter, known as a Crummey letter, letting them know about the trust funding and their right to withdraw the funds. After the 30 days have passed, the trustee can use the funds to pay the annual insurance premium. You run the risk of the beneficiaries withdrawing the funds, but if they know that by allowing the money to stay in the trust they will receive more money later, it shouldn’t be a problem. Beneficiaries . The beneficiary of the life insurance policy is usually the trust. Once the funds are deposited in the trust, the trustee can distribute the assets to the beneficiaries in the way specified by the trust. For example, if your beneficiaries are minors, you can wait to have the trustee distribute the assets. Keeping the assets in the trust will also protect them from your beneficiaries’ creditors. The downside of an irrevocable life insurance trust is that you do not have the ability to change it once it is set up, although the policy would effectively be canceled if you stopped paying the premiums. If you are considering this type of trust, discuss it with your attorney.
Share by: