Planning with Real Estate

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1 Plaig with Real Estate The gift tax exemptio drops from $5.12 millio to $1 millio per perso if curret tax cuts are allowed to expire at the ed of For your family or your favorite charity, ow is the time to take advatage of these tax beefits without hurtig your liquidity. Thik: giftig real estate. Just be aware of all the may cosideratios i passig o a piece of property the right structure, the terms, the tax beefits ad who should pay for the broke chia.

2 The Big House felt like home.... I wated my childre to kow the feelig, says George Colt, author of The Big House: A Cetury i the Life of a America Summer Home. Real Estate ad a Gift It While You Ca Strategy I The Big House: A Cetury i the Life of a America Summer Home, author George Colt lovigly describes ot oly his exteded, yet closekit, multi-geeratioal family, but the fixed poit to which the family migrates each summer a large, but frayig, 100-year-old family home o Cape Cod, the log-time ceter of the exteded family s uiverse. Ad also a ceter whose spokes have drifted away ito their ow uclear uits, eve as the house eeds a major ifusio of moey (ad attetio) to keep it from fallig apart or fallig to the wreckig ball. As Colt describes it, his 42 summers i The Big House were beloved for the stability, cotiuity ad predictability I foud owhere else. The Big House felt like home.... I wated my childre to kow the feelig. I may ways, this is a typical sceario for affluet families a first geeratio wats to pass dow ad keep a treasured property i the family for subsequet geeratios to ejoy. Fortuately, there are comprehesive estate plaig tools that ca help families achieve this goal. There are also good reasos to cosider ways to gift real estate i 2012, while gift tax rates are low ad the gift tax exemptio is high. Cosider this: The gift tax rate is curretly 35% ad is scheduled to icrease to 55% if the Bush tax cuts expire at the ed of The gift tax exemptio is curretly $5.12 millio per perso ad is scheduled to decrease to $1 millio per perso if the Bush tax cuts expire at the ed of 2012, ad if either presidetial cadidate has his curret tax proposal eacted by Cogress i For may people, though, giftig cosideratios iclude the issue of a egative effect o liquidity ad cash flow eeds. A gift of real estate especially a property that a family cosiders to be part of its uique heritage ad family idetity is a smart way to achieve umerous goals, icludig maitaiig liquidity, accordig to Scott Thompso, Atlatic Trust maagig director. The term real estate ecompasses everythig from a workig farm to a beach cottage to a commercial office buildig. But whe families begi thikig about giftig property, they should also cosider the may emotios ad family legacy cosideratios iheret i real estate that are t usually foud i fiacial assets such as stocks, Thompso says. Cosiderig our curret eviromet, all the pieces lie up for may cliets a discouted asset, a asset with a strog family coectio, a very attractive tax eviromet ad creative plaig tactics to take advatage of preset coditios. Not that the optios are ot complex, because they are, if for o other reaso tha the fact that you have to be respectful of ad flexible about family dyamics. 2012

3 Now ad Later: QPRT Sales ad Leases QPRTs: A Closer Look The qualified persoal residece trust (QPRT) is a effective way to take advatage of 2012 gift tax rates ad the gift exemptio rate, while keepig a valuable property i the family. If you are the grator, these are a QPRT s advatages: The residece is o loger i your estate. Appreciatio i excess of the IRS assumed rate is trasferred to childre at miimal gift tax cost. You retai the right to live i the home durig the term of the QPRT ad you may ret the residece from your child or childre, or the trust, at the ed of the term. You may exclude tax o capital gais. Ad here are some disadvatages you should cosider: If you die before the ed of the QPRT s term, the value of your iterest will be icluded i your estate this mortality risk ca be offset by varyig the legth of the QPRT. The IRS may challege the value of the discout i additio to the value of the remaider iterest. The stepped-up basis at your death will be lost if your childre sell the residece post-death, for liquidity or other reasos. A qualified persoal residece trust (QPRT) is a commo choice for achievig umerous goals. I particular, QPRTs take maximum advatage of the curret exclusio amout ad sigificatly reduce gift taxes o the trasfer of the property. The QPRT also takes advatage of the valuatio discouts that result from splittig a iterest i property. Its biggest beefit is that parets ca trasfer their iterest i a persoal residece, icludig a legacy vacatio home, to a trust for the beefit of the childre, while retaiig the right to live i the residece for the term of the trust. Whe the trust termiates, the residece becomes the childre s property. Because the iitial trasfer of the residece is subject to the parets retaied right to use the house, the value of the gift to the childre is reduced, says Thompso. The right to ow ad use the house sometime i the future is ot as valuable as the right to ow ad use the house immediately. So valuatio discouts apply, resultig i a reduced trasfer tax o the property. If the property cotiues to appreciate, that appreciatio passes to the childre free of ay additioal trasfer tax. The estate tax savigs for the parets ca be cosiderable depedig o the value of the home at the ed of the QPRT s term. Property ca also be trasferred to a limited liability corporatio (LLC) or limited partership (LP), with the childre owig equal shares of the LLC or LP that actually ows the property. While the LLC or LP exists, the parets are actually teats of, ad pay ret to, the etity. The ret ca be used toward the ogoig upkeep of the property, says Thompso. I additio, the LLC ca ow life isurace o the parets so that whe the secod paret dies, the LLC becomes the beeficiary creatig a edowmet fud for both upgrades ad maiteace or for liquidity if a siblig eeds to be bought out by others. Most importat is to build flexibility ito the structure of the trasfer so that it makes sese for the loger-term harmoy of a multi-geeratio family, as well as from a tax ad estate plaig stadpoit. Sometimes the plaig tactic ca iclude a piece of property that has value, but o coectio for the ext geeratio. I these cases, it makes sese to remove the property from the estate, but it also requires a frak discussio with the cliet about expectatios. Oe of our cliets who is a physicia ows the buildig where he houses his medical practice, says Paulia Mejia, maagig director ad seior wealth strategist. The property is i a area that was oce depressed, but is ow showig sigs of sigificat developmet ad appreciatio i the future, ad he plas to keep his practice at that locatio; this beig said, it would be to his advatage to remove it from his estate. I this case, a gift to a trust with lease back probably makes the most sese. Although the tax advatages are there, it s a type of trasactio that has a differet flavor tha giftig the family vacatio home to the ext geeratio. Aother exit strategy for cliets who ow commercial property particularly a sizeable portfolio of umerous properties acquired as a ivestmet is to sell the portfolio to a real estate ivestmet trust (REIT). Maagig commercial properties requires a lot of cost ad expertise, says Thompso, who has advised cliets i similar situatios o sellig to a REIT. It s frequetly ot somethig cliets childre are either iterested i doig or equipped to do. At Atlatic Trust, we re ofte ivolved i plaig strategies for both commercial real estate ad family legacy properties. Although there is a big cotrast betwee the two, we have to thik creatively about how to trasfer the properties ad their value to subsequet geeratios. Page 3 Plaig with Real Estate

4 The Gift That Keeps o Givig or Requirig: Who Pays? Oce a real estate gift strategy is put ito place, the big questio may cliets ask themselves is, Okay, ow what? Aswerig this questio ivolves a critical set of family decisios, says Art Graper, maagig director ad seior wealth strategist. Ultimately, these decisios eed to accomplish two goals: explai how each family member is goig to cotiue to use the property ad clarify the fiacial resposibilities associated with the property icludig which family members will ultimately be held accoutable. Graper advises families to set up ad maage a caledar of usage. This caledar should aswer some of the followig questios: Ca o-family members ret the property, ad if so, who will receive the retal icome if oe child gives up his or her week ad rets the property to a fried? Does usage of the property have to be equal for all parties? Should we implemet a family lottery for the most desirable weeks? How are repairs, taxes ad isurace goig to be paid for ad reewed over time? Ideally, the trust would be established with a foudatio of cash to pay for ogoig expeses ad upkeep to avoid situatios that would put oe child or gradchild i a fiacial bid. Certaily there are cases where a youg family member may feel house-rich but cash-poor, says Graper. While each family, ad each piece of real estate to be gifted, is uique, there are commo emotioal lad mies that go alog with trasferrig heritage property. Let s put it this way, says Thompso, There are very differet issues for a family whose property actually appears o a state map ad is i a area amed after them tha for a family passig o a city residece eve if the property is extremely valuable ad is the home where the kids grew up. Strog feeligs are especially commo with moutai or lakeside camps places where geeratios coect ad recoect, where holidays are spet ad where there s a palpable sese of safety ad family uity. Family discussios guided by a advisor eed to go deep ad iclude the followig questios: Do all of the childre feel equally attached to this property? How well do the childre ad gradchildre get alog ad do they commuicate with each other well? Is each heir of somewhat equivalet earig power or asset base? What happes if oe of our childre divorces ad wats to sell his or her iterest? Who decides o the eed for remodelig? There are soud ways to hadle most of the what if s ivolved i giftig real estate, says Mejia. Certaily, a part of our job as trusted advisors is to ecourage ad facilitate family discussios to esure as may questios are addressed as possible. Whe childre are too youg for that, parets ca express very specific feeligs i a trust documet. For oe cliet, laguage was icluded about the parets hope but ot requiremet that the childre retai the vacatio home whe the trust termiates ad the assets are distributed. It eve outlied provisios for hadlig optios to buy from sibligs who do ot wish to retai their iterest, icludig drawig straws to decide which of the other sibligs ca go first o purchasig aother s iterest. Page 4 Plaig with Real Estate

5 Real Estate ad Door Advised Fuds: A Checklist A typical opportuity for real estate ad door advised fuds (DAFs) is this: Your family ows appreciated, debt-free residetial real estate, such as a vacatio home, is philathropically iclied, ad would like to support various charitable causes over time. You re iterested i elimiatig the capital gais tax liability ad i takig a charitable tax deductio. Cosideratios ad Solutios: The property will ideally be highly marketable, debt-free ad, ideally, highly appreciated. Some charities will cosider a commercial property with a icome stream, but the due diligece process is cosiderably more ivolved. You must be willig to irrevocably trasfer the property to the charity that sposors the DAF, which will exclusively cotrol the sale, icludig egotiatig the sale price. Beefits: You ulock the philathropic value of a seemigly illiquid asset while also elimiatig ay capital gais tax o the appreciatio of your property. You ca take a tax deductio for the fair market value of the property up to 30% of your adjusted gross icome (AGI). If the fair market value of your cotributio is greater tha 30% of your AGI, you may be able to carry the deductio forward for five years. You ca ivest the balace i your DAF for potetial taxfree growth ad more dollars to charity. I some cases, trasferrig real estate to childre ad gradchildre carries a price that eeds to be carefully cosidered for those receivig the property. Thik of a producig vieyard or workig rach. I cases like those, the romatic otio of keepig the lovely home with the small wiery attached suddely becomes a career i agriculture. Graper worked with a family whose patriarch strogly desired for his three childre to keep the family together by ivolvig all of them i ot just usage of a home o the family farm but i actively workig the farm. Of the three, oly oe actually lived o the farm, while the other two lived a cosiderable distace away. This patriarch s desire meat literally workig the fields ad fixig bars, says Graper. Although it s bee a struggle for each of them, they ve fially come together uder oe uifyig purpose: Dad wated us to keep the farm as a viable etity i order to preserve the property ad the family s farmig traditio for future geeratios. Doatig Real Estate to Charity Aother reaso may families wat to gift property is to achieve charitable givig goals. Givig more, ad givig more efficietly, is a big reaso to cosider doatig real estate to your favorite charitable orgaizatio, accordig to Rya Bolad, director of the Complex Asset Group at Fidelity Charitable i Bosto. Very ofte, people doate appreciated securities, but for some people, doatig real estate ca be eve more tax efficiet ad, therefore, very advatageous for both giver ad receiver, says Bolad. Let s assume that a couple with a large primary residece that is mortgage-free ad ow worth several millio dollars is ready to dowsize after 25 years i the home. Actively philathropic, they assume that their best course of actio is to sell the home ad doate the profit to charity. But a direct doatio of the home to a public charity allows a full, fair market value tax deductio (ot just the origial cost basis), while elimiatig the capital gais tax they would pay o the sale which could be quite sizeable o a log-held home i a area with sigificat appreciatio. The bottom lie is that by doatig a piece of highly appreciated real estate, you re ot oly beig tax-efficiet, but you re also able to give more to the causes ad orgaizatios you care about deeply, says Bolad. Alog with doatig other complex assets private compay stock, LLC ad LP iterests a gift of real estate requires careful cosideratio by both the idividual ad the charity. I some cases, optios for doatig may be limited for example, whe the favorite charity is a small orgaizatio with a local focus. It s ot that these orgaizatios do t wat a cotributio of this value, it s just that may charities are ot equipped to hadle this type of doatio, says Bolad. Eve before they ca sell it, the charity would eed to cosider umerous admiistrative issues such as isurace, taxes, utilities ad security, to ame a few. Ad if the doated real estate is far away from the charitable orgaizatio s locatio, they may be very reluctat to accept it. Oe strategy gaiig favor is to doate complex assets such as real estate to a charity that offers a door advised fud (DAF) program. This type of structured givig vehicle has grow i popularity more tha 688% betwee 1995 ad 2011.* With a DAF, the door/cliet would make a irrevocable cotributio of real estate to the sposorig charitable orgaizatio. The charity would coordiate the sale of the property ad allocate the proceeds ito a the door s DAF. Oe of the biggest beefits of structurig a doatio this way is that the cliet receives *The Chroicle of Philathropy, December 1995 ad May 2012 issues. Page 5 Plaig with Real Estate

6 the tax deductio whe the property is give, but ca use the proceeds to provide support to charities ow ad i the future, says Bolad. It gives the door time to strategize thoughtfully about diversifyig givig. May wat to give to several orgaizatios, but it would be very cumbersome to cotribute oe-third of a house to each of your alma mater, your church ad your local free medical cliic, Bolad otes. I the case of a small, local soup kitche, periodically receivig smaller cash amouts may be easier for the orgaizatio to hadle. I additio, some orgaizatios that offer DAFs allow grats as small as $50, a opportuity for a multi-geeratioal family to let gradchildre lear ad participate i decisios o where the gifts go. Whatever the ultimate goal keepig a family s Big House itact ad improved, puttig it i the ext geeratio s hads or doatig it to help a favorite cause recogizig family dyamics ad maagig your family s expectatios are importat parts of the process. If, for example, somethig starts with Mom ad Dad the lake cottage they ve lovigly maitaied over the years Mom ad Dad will be the costat touchstoe ad referece poit. Healthy family discussios that accompay the set-up of a QPRT or other tactic may help avoid touchy issues i the future. The hope is to avoid a coversatio years dow the road i which oe siblig says to aother, Not oly did you ad your frieds break Mom s favorite lamp at the lake house, who said you could rip out the 100-year-old gardeia bushes ad put i a herb garde? Please speak with your Atlatic Trust relatioship maager about how these real estate plaig optios could beefit your estate pla. Coservatio Easemets: What You Need to Kow A icome tax deductio up to 30% of adjusted gross icome, sigificat estate tax beefits, a doatio to a worthwhile orgaizatio what s ot to like about a coservatio easemet (CE)? I simple terms, a CE is a volutary ecumbrace that creates a legally eforceable lad preservatio agreemet betwee a property ower ad a govermet agecy or a qualified lad protectio orgaizatio. It s ofte used to restrict real estate developmet o a family s heritage property. I geeral, a CE ca be used to protect ay type of lad whose coservatio is i the public iterest wood lad, wetlads, historic areas. The premise that a ladower ca covey certai rights o his or her lad while retaiig other rights is rooted i Eglish commo law, o which the U.S. legal system is based. The fiacial beefit to the property ower who doates the CE to a qualified orgaizatio is a federal icome tax deductio as log as the easemet is perpetual. While a lad trust should help esure that doatios of lad or CEs meet federal ad state tax law requiremets, i the log ru, it s the door s resposibility to make sure the requiremets are met. A extremely importat poit that ca t afford to be overlooked: While the real estate remais the private property of the ower after the CE is doated, the terms of the CE ru with the lad ad are bidig o all future owers of the property. Paulia Mejia, Atlatic Trust maagig director, worked with a family with a lovely historic home o the East Coast, whose ower put a CE o it as a result of her fodess for a local charity. She was able to take a sizeable icome tax deductio while also satisfyig her desire to alig with the missio of the charity. The problems came o the back ed, says Mejia. Although the locatio of the home was highly desirable, the house eeded updatig ad the CE was so restrictive that after the cliet s death, her childre could t fid a iterested buyer whe they decided to sell. What seemed like a great idea doe for the right reasos tured ito a difficult situatio for a later geeratio who did t feel as strogly about the home. This is a lesso i thikig very carefully about a plaig techique s log-term effects. Page 6 Plaig with Real Estate

7 Real Estate Trasfer Matrix Key real estate trasfer techiques have bee aalyzed ad preseted i matrix form by the Wealth Strategies Group. This matrix addresses geeral cosideratios ad should ot be costrued as legal or tax advice. Please cosult your Atlatic Trust relatioship maager for more iformatio o your specific applicatio. Outright Gift Qualified Persoal Residece Trust (QPRT) Itetioally Defective Grator Trust (IDGT) Split Purchase Remaider Sale Basics Gift of iterest i real estate directly to a idividual or trust. Type of split iterest trust which allows the grator to trasfer property to a irrevocable trust ad retai the right to use the property for a specified umber of years. At the ed of the term selected, the property is distributed to family members, or a trust for their beefit. Grator gifts a iterest i his home (or other assets) equal to at least 10% of the value of the property to be sold to a trust. Grator the sells the remaider of his owership iterest to the trust i exchage for a promissory ote equal to the fair market value of the portio sold. Note ca provide for iterest oly ad a balloo paymet or pricipal. Trust is a grator trust for icome tax purposes. Trust (or idividual) purchases a home. Trust provides paret with a life estate ad child a remaider iterest. Paret s cotributio to trust is equal to actuarial preset value of lifetime iterest. Child s cotributio is equal to actuarial value of remaider iterest. The trust should comply with the QPRT regulatios to avoid Sectio 2702 applicatio. Grator sells a remaider iterest i the property carvig out a life estate or term of years. If a trust is used it should comply with the QPRT regulatios to avoid Sectio 2702 applicatio. Gift Tax Gift value will be calculated based o the FMV of the property at the time of trasfer, less applicable discouts if a fractioal iterest gift is made. Gift value is calculated by determiig the excess of the value of the property trasferred over the value of the retaied iterest. The value of the retaied iterest is determied by multiplyig the pricipal by the preset value of a auity factor for the umber of years of the trust term. Retaied value is greater if applicable federal rate is higher, grator s age is older or term is loger. The portio of the home (or other asset) that is gifted to the trust will be subject to gift tax. The value of the gift will be based o the fair market value of the property adjusted for appropriate fractioal iterest discouts. No gift has bee made if both parties are payig full ad adequate cosideratio. IRS may dispute valuatio based o Gradow v. U.S. No gift has bee made if purchaser of remaider iterest pays full ad adequate cosideratio. IRS may dispute valuatio based o Gradow v. U.S. Geeratio Skippig Trasfer (GST) Tax GST exemptio ca be applied or allocated if trasfer is a direct skip gift or a trasfer to a GST trust. GST exemptio caot be allocated util the ed of the QPRT term whe the property value is likely to be sigificatly higher. If a cotiuig trust is used after the QPRT term, the grator may eed to opt out of a automatic allocatio uder ew GST regulatios. GST exemptio ca be allocated to the etire trust based oly o the gifted portio, resultig i sigificat GST beefits of trasactio. Joit purchase ca be made with fuds owed by GST exempt (dyasty) trust. Remaider iterest ca be purchased with fuds owed by a GST exempt (dyasty) trust. Estate Iclusio If death occurs withi three years of the trasfer, ay gift tax paid will be icluded i grator s gross estate. Outright Gift Full value of property trasferred is icluded i the estate uder Sectio 2036(a) if the grator does ot survive the term. Qualified Persoal Residece Trust (QPRT) Residece will ot be icluded i the estate, as log as grator does ot retai rights to possessio or ejoymet of trust property. The remaiig pricipal of ote will be icluded. There may Itetioally be icome tax Defective cosequeces if the ote is outstadig Grator at Trust death. (IDGT) If the purchaser has paid full ad adequate cosideratio as determied by IRS tables, there should be o estate iclusio. Be careful if joit purchaser obtaied fuds from paret as IRS may argue Sectio 2036(a) iclusio. If the purchaser has paid full ad adequate cosideratio as determied by IRS tables, there is o estate iclusio. Be careful if purchaser obtaied fuds from paret as IRS may argue Sectio 2036(a) iclusio. Split Purchase Remaider Sale Ret Grator ca pay fair market value ret if grator desires to live i residece. Doee will recogize icome for retal paymets. The grator has the right to use the residece durig the QPRT term. After the term, the grator must pay a fair market ret if he would like to cotiue to occupy the residece. The grator ca ret the residece from the trust without icome tax cosequece to grator or trust. Note paymets ca be timed to correlate with retal paymets due. No ret required with this strategy. No ret required with this strategy. Sale Back There is o prohibitio if grator would like to repurchase the residece. Grator may ot purchase the residece back after termiatio of the QPRT to obtai a stepped-up basis i property at death. Grator ca re-purchase residece with o icome tax cosequeces (or substitute asses of equivalet value) to achieve stepped up basis at death. Paret is able to purchase remaider iterest for full ad adequate cosideratio without icome tax cosequeces (or substitute assets of equivalet value) if remaider iterest is held i a grator trust. Paret will the achieve stepped up basis at death. Paret is able to repurchase remaider iterest for full ad adequate cosideratio without icome tax cosequeces (or substitute assets of equivalet value) if remaider iterest is held i a grator trust. Paret will the achieve stepped up basis at death. Page 7 Plaig with Real Estate

8 Atlata Austi Baltimore Bosto Chicago Dever Housto Newport Beach New York Sa Fracisco Washigto, D.C Atlatic Trust Private Wealth Maagemet icludes Atlatic Trust Compay, a divisio of Ivesco Natioal Trust Compay (a limited-purpose atioal trust compay), ad Stei Roe Ivestmet Cousel, Ic. (a registered ivestmet adviser), both of which are wholly-owed subsidiaries of Atlatic Trust Group, Ic. This documet is iteded for educatioal purposes oly ad the material preseted should ot be costrued as a offer or recommedatio to buy or sell ay security. Cocepts expressed are curret as of the date of this white paper oly ad may chage without otice. Such cocepts are the opiios of our ivestmet professioals, may of whom are Chartered Fiacial Aalysts (CFA ). The CFA desigatio is a globally recogized ad attests to a charterholder s success i a rigorous ad comprehesive study program i the field of ivestmet maagemet ad research aalysis. Certified Fiacial Plaer Board of Stadards Ic. ows the certificatio marks CFP ad CERTIFIED FINANCIAL PLANNER i the U.S. There is o guaratee that these views will come to pass. Past performace does ot guaratee future comparable results. To esure compliace with requiremets imposed by the IRS, we iform you that ay U.S. federal tax advice cotaied i this commuicatio (icludig ay attachmets) is ot iteded or writte to be used, ad caot be used, for the purpose of (i) avoidig pealties uder the Iteral Reveue Code or (ii) promotig, marketig or recommedig to aother party ay trasactio or matter addressed herei. Atlatic Trust does ot provide legal advice, ad the iformatio cotaied herei should oly be used i cosultatio with your legal, accoutig ad tax advisers. To the extet that iformatio cotaied herei is derived from thirdparty sources, although we believe the sources to be reliable, we caot guaratee their accuracy. Approved For Public Use Ivestmet Products Offered are Not FDIC-Isured, May Lose Value ad are Not Bak Guarateed. Page 8 Plaig with Real Estate

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