Want A Thriving Business? Focus On TOP QUALITY RESIDENCES!

A Qualified Personal Residence Trust (QPRT) is a great tool for persons with large estates to transfer a principal residence or vacation home at the cheapest possible gift tax value. The overall rule is that if a person makes a gift of property in which they retains some benefit, the house continues to be valued (for gift tax purposes) at its full fair market value. Basically, there is no reduction of value for the donor’s retained benefit.

In 1990, to make certain a principal residence or vacation residence could pass to heirs without forcing a sale of the residence to pay estate taxes, Congress passed the QPRT legislation. That legislation allows an exception to the general rule described above. Due to this fact, for gift tax purposes, a decrease in the residence’s fair market value is allowed for the donor’s retained interest.

For example, assume a father, age 65, includes a vacation residence valued at $1 million. He transfers the residence to a QPRT and retains the proper to use the vacation residence (rent free) for 15 years. By the end of the 15 year term, the trust will terminate and the residence will be distributed to the grantor’s children. Alternatively, the residence can remain in trust for the advantage of the children. Assuming a 3% discount rate for the month of the transfer to the QPRT (this rate is published monthly by the IRS), the present value into the future gift to the children is only $396,710. This gift, however, could be offset by the grantor’s $1 million lifetime gift tax exemption. If the residence grows in value at the rate of 5% per year, the value of the residence upon termination of the QPRT will be $2,078,928.

Assuming an estate tax rate of 45%, the estate tax savings will undoubtedly be $756,998. The net result is that the grantor could have reduced how big is his estate by $2,078,928, used and controlled the vacation residence for 15 additional years, utilized only $396,710 of his $1 million lifetime gift tax exemption, and removed all appreciation in the residence’s value through the 15 year term from estate and gift taxes.

While there is a present lapse in the estate and generation-skipping transfer taxes, it’s likely that Congress will reinstate both taxes (maybe even retroactively) some time during 2010. If not, on January 1, 2011, the estate tax exemption (which was $3.5 million in 2009 2009) becomes $1 million, and the top estate tax rate (that was 45% in 2009 2009) becomes 55%.

Ki Residences Sunset Way Even though the grantor must forfeit all rights to the residence by the end of the term, the QPRT document can provide the grantor the proper to rent the residence by paying fair market rent when the term ends. Moreover, if the QPRT is designed as a “grantor trust” (see below), by the end of the word, the rent payments will never be subject to taxes to the QPRT nor to the beneficiaries of the QPRT. Essentially, the rent payments will be tax-free gifts to the beneficiaries of the QPRT – further reducing the grantor’s estate.

The longer the QPRT term, small the gift. However, if the grantor dies through the QPRT term, the residence will be brought back in to the grantor’s estate for estate tax purposes. But because the grantor’s estate will also receive full credit for any gift tax exemption applied towards the original gift to the QPRT, the grantor is not any worse off than if no QPRT have been created. Moreover, the grantor can “hedge” against a premature death by creating an irrevocable life insurance coverage trust for the advantage of the QPRT beneficiaries. Thus, if the grantor dies during the QPRT term, the income and estate tax-free insurance proceeds can be used to pay the estate tax on the residence.

The QPRT could be designed as a “grantor trust”. This means that the grantor is treated as the owner of the QPRT for tax purposes. Therefore, during the term, all property taxes on the residence will undoubtedly be deductible to the grantor. For exactly the same reason, if the grantor’s primary residence is used in the QPRT, the grantor would be eligible for the $500,000 ($250,000 for single persons) capital gain exclusion if the primary residence were sold during the QPRT term. However, unless all of the sales proceeds are reinvested by the QPRT in another residence within two (2) years of the sale, some of any “excess” sales proceeds should be returned to the grantor each year during the remaining term of the QPRT.

A QPRT is not without its drawbacks. First, there is the risk mentioned previously that the grantor fails to survive the set term. Second, a QPRT can be an irrevocable trust – after the residence is placed in trust there is no turning back. Third, the residence does not receive a step-up in tax basis upon the grantor’s death. Instead, the foundation of the residence in the hands of the QPRT beneficiaries is the same as that of the grantor. Fourth, the grantor forfeits all rights to occupy the residence by the end of term unless, as stated above, the grantor opts to rent the residence at fair market value. Fifth, the grantor’s $13,000 annual gift tax exclusion ($26,000 for married couples) cannot be found in connection with transfers to a QPRT. Sixth, a QPRT isn’t an ideal tool to transfer residences to grandchildren because of generation skipping tax implications. Finally, by the end of the QPRT term, the house is “uncapped” for property tax purposes which, depending on state law, could result in increasing property taxes.

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