Qualified Personal Residence Trusts

A qualified Personal Residence Trust (QPRT) is the perfect tool for persons with large properties to transfer a principal Residence or vacation home at the lowest possible Ki Residences gift tax value. The overall rule is that if a person makes something special of property in which he or she retains some benefit, the property is still valued (for gift tax purposes) at its full fair market value. In other words, there is no reduction of value for the donor’s stored benefit.

In 1990, to ensure that a principal Residence or vacation Residence could pass to heirs without pressuring a sale of the Residence to pay est taxes, Congress passed the QPRT legislation. That legislation allows an exclusion to the general rule described above. As a result, for gift tax purposes, a reduction in the Residence is the reason fair market value is allowed for the donor’s stored interest.

For example, assume a father, age 65, has a vacation Residence valued at $1 million. He moves the Residence to a QPRT and retains the right to use the vacation Residence (rent free) for 15 years. At 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 benefit of the family. 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, can be offset by the grantor’s $1 million lifetime gift tax exemption. If the Residence grows in value at the rate of 5% each year, the value of the Residence upon firing of the QPRT will be $2, 078, 928.

Assuming an est tax rate of 45%, the est tax savings will be $756, 998. The internet result is that the grantor will have reduced the size of his est 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 is the reason value during the 15 year term from est and gift taxes.

While there is a present lapse in the est and generation-skipping transfer taxes, it’s likely that Congress will reinstate both taxes (perhaps even retroactively) some time during 2010. If not, on Jan 1, 2011, the est tax exemption (which was $3. 5 million in 2009) becomes $1 million, and the top est tax rate (which was 45% in 2009) becomes 55%.

Even though the grantor must surrender all privileges to the Residence at the end of the term, the QPRT document can give the grantor the right 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), at the end of the term, the rent payments will not be controlled by income 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 est.

The longer the QPRT term, the smaller the gift. However, if the grantor drops dead during the QPRT term, the Residence will be brought back into the grantor’s est for est tax purposes. But since the grantor’s est will also receive full credit for any gift tax exemption applied towards the initial gift to the QPRT, the grantor is no worse off than if no QPRT had been created. Moreover, the grantor can “hedge” against a premature death by creating an irrevocable life insurance trust for the benefit of the QPRT beneficiaries. Thus, if the grantor drops dead during the QPRT term, the income and est tax-free insurance proceeds can be used to pay the est tax on the Residence.

The QPRT can be designed as a “grantor trust”. This means that the grantor is treated as who owns the QPRT for income tax purposes. Therefore, during the term, all property taxes on the Residence will be deductible to the grantor. For the same reason, if the grantor’s primary Residence is utilized in the QPRT, the grantor would qualify for the $500, 000 ($250, 000 for single persons) capital gain different 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, a part of any “excess” sales proceeds must 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 above that the grantor doesn’t survive the set term. Second, a QPRT is an irrevocable trust : once the Residence is put in trust there is no turning back. Third, the Residence does not get a step-up in tax basis upon the grantor’s death. Instead, the cornerstone of the Residence in the hands of the QPRT beneficiaries matches that of the grantor. Fourth, the grantor forfeits all privileges to occupy the Residence at the end of term unless, as mentioned above, the grantor opts to rent the Residence at fair market value. Junior high, the grantor’s $13, 000 annual gift tax different ($26, 000 for married couples) cannot be used in connection with moves to a QPRT. Sixth, a QPRT is not an ideal tool to transfer Residence s to grandchildren because of generation skipping tax effects. Finally, at the end of the QPRT term, the property is “uncapped” for property tax purposes which, depending on state law, you could end up increasing property taxes.

The technicians for establishing a QPRT are fairly simple. An assessment is required to establish the fair market value of the Residence. The Residence is deeded to a QPRT which names the persons who are for the Residence at the end of the stated term, usually a child or children of the grantor. A term is defined that the grantor is likely to survive, but long enough to cause a substantial lowering of the gift tax value of the Residence. The grantor is the trustee of the QPRT and maintains control of the assets of the trust before term ends. During the QPRT term, the grantor usually continues to pay the normal and traditional expenses for maintenance, repairs, property taxes, utilities, etc. Whilst it is permissible to transfer mortgaged property to a QPRT, it is not practical since the principal part of each mortgage payment is treated as an additional gift to the QPRT beneficiaries.

A single individual can use a QPRT for just two Residence s as long as one of them is his/her principal Residence. A married couple can make gifts of three Residence s as long as one spouse gifts both a principal Residence and a vacation Residence. Property owned mutually by spouses can be retitled as tenants-in-common and each spouse can then contribute his/her undivided one-half interest in the Residence into his/her own QPRT, warranting a further discount on the gift tax value because of the lack of marketability and lack of control associated with fractional interests in real estate. Alternatively, property owned mutually by spouses can be first utilized in the spouse with the longer life span who then moves the property to a QPRT. Finally, possibly for the grantor of a QPRT to give his/her spouse a “life estate” in the Residence at the end of the QPRT term before it passes about the children. So ,, the grantor will have oblique access to the Residence as his/her wife or husband’s “guest”.

The QPRT also offers an excellent asset protection vehicle since the grantor no longer owns the property once the trust is established. Thus, creditors cannot lien the Residence. Yet, the grantor stays in complete control as the trustee of the QPRT, and retains all the income tax benefits of home ownership such as property tax breaks and the $250, 000/ $500, 000 capital gain different discussed above. If the grantor sells the Residence, the sales proceeds are protected as is any replacement Residence purchased by the QPRT. To sum it up, the QPRT is the perfect est planning tool for persons with large properties that are looking to transfer their principal Residence and/or vacation home to their children.

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