Not putting a house in a trust avoids setup costs, complexity, and refinancing hassles, but risks probate, delays, and lack of privacy for other assets; while trusts offer probate avoidance for the house, they don't automatically cover everything, and require careful management, making them less ideal for those with simpler estates or who prioritize immediate cost savings over long-term estate efficiency.
Disadvantages of putting your house in a trust include upfront legal costs and complexity, potential difficulty refinancing mortgages, the risk of losing control (especially with irrevocable trusts), the need for meticulous paperwork and ongoing management, and the fact that some tax benefits aren't guaranteed, with potential issues like losing capital gains tax relief or triggering other taxes. It also doesn't protect other assets from probate unless they are also in the trust.
Tax Issues and Capital Gains
The tax rate for capital gains can be as high as 15%. However, parents can use strategies to reduce tax liabilities when transferring property to their children. For example, by transferring the property to children through a trust, you can potentially reduce or avoid estate taxes.
Disadvantages of putting a house in trust
Expense. Creating and maintaining a trust is typically more expensive than creating a will. Loss of control. If you create an irrevocable trust, you typically cannot change the terms of the trust or change the beneficiaries.
The most tax-efficient way to leave a home to a child usually involves leaving it in your will for them to inherit, which qualifies for a stepped-up tax basis (reducing capital gains tax if sold) and avoids immediate gift taxes, though trusts (like Revocable Living Trusts for probate avoidance or QPRTs for advanced planning) or Transfer-on-Death (TOD) deeds (where available) offer control and probate avoidance, while outright gifting is generally less tax-efficient due to inherited basis issues. Consulting an estate planning attorney is crucial to choose the best method for your specific situation.
Suze Orman, the popular financial guru, goes so far as to say that “everyone” needs a revocable living trust. But what everyone really needs is some good advice. Living trusts can be useful in limited circumstances, but most of us should sit down with an independent planner to decide whether a living trust is suitable.
Transfer assets into a trust
Certain types of trusts can help avoid estate taxes. An irrevocable trust transfers asset ownership from the original owner to the trust, with assets eventually distributed to the beneficiaries.
A revocable living trust will not protect your assets from a nursing home. This is because the assets in a revocable trust are still under the control of the owner. To shield your assets from the spend-down before you qualify for Medicaid, you will need to create an irrevocable trust.
Alternatives, such as a transfer-on-death deed or joint tenancy, also can transfer ownership but lack the control offered by trusts. Your financial advisor and an estate planning attorney can help you determine if putting your home in a trust aligns with your goals.
Managing the House in the Trust After the Grantor's Death
The home does not immediately pass to the beneficiaries. Instead, the trustee must follow the terms of the trust, which could mean that the house is transferred, sold, or retained in the trust for a time.
Placing your house into a trust has many potential benefits. If you are thinking of planning for long term care or simply want to avoid the process of probate, you should consider a trust to hold title to your property.
Compared to wills, living trusts are considerably more time-consuming to establish, involve more ongoing maintenance, and are more trouble to modify. A lawyer-drafted trust typically costs more than a thousand dollars, though the cost will shrink dramatically if you use a self-help tool to make your own trust.
The "5 by 5 rule" (or "5 and 5 power") in trusts allows a beneficiary to withdraw the greater of $5,000 or 5% of the trust's annual fair market value, whichever is higher, without triggering significant tax consequences, offering flexibility while preserving the trust's long-term integrity for the grantor's original purpose. If unused, the right lapses, but repeated lapses can have tax implications, so it's a strategic clause for asset management and tax planning.
Trust is preferable over a Will because the assets that are in the Trust are non-public assets. Example: If you take your house and you transfer it into the Trust and your parents passed away, then you don't have to open an estate to transfer the asset, and it remains confidential.
For most people with a net worth under $1 million, a simple will is enough. Wills pretty much always go through probate, but a trust, if you set it up right, can help you avoid probate.
Many people who are worried about what will happen to their home when they die ask us whether it would be better to simply add their child's name to their deed. We caution against adding your child to your deed and, in almost all cases, recommend including them in your will instead.
In summary, while giving with a cold hand allows for tax benefits, control, and security during your lifetime, it means you won't see the positive impact on your heirs and could lead to less impactful timing of the inheritance.
Give more money away
Lifetime gifting is a straightforward way to begin reducing your IHT bill. By gifting money during lifetime, that would have been part of an inheritance anyway, you reduce the size of your estate so that there is smaller amount subject to IHT on your death.