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Can property be transferred from one family member's living trust to his adult child's living trust? Are there tax consequences?

San Diego, CA |

Parent holds undeveloped property in his living trust. Adult children wish to begin building on their future portions of the property, but will need loans to do so. If parcels are transferred to children's own trusts, would gift tax for parent and/or capital gains for children result?

Attorney Answers 4


  1. Your question is complex and requires the advice of an attorney specializing in trust taxation. The answers will depend on several factors, including whether your parent's trusts have become irrevocable.

    Assuming that the trusts for your parents are not irrevocable, it would be better if they transferred from the trust to themselves and then made a gift to you. You could then transfer the property to your own revocable trust.

    The gift made by your parents is gift taxable. There is a federal gift tax and potentially a gift tax in your state. You can review this with the attorney that you work with.

    This AVVO answer does not and is not intended to constitute legal advice. This answer may also not be used in any manner to either attempt to or actually evade any federal taxes or penalties.


  2. Regarding the transfer of the land as a gift, the gift tax would apply. It can be mitigated by first, using annual exclusion amounts ($14,000 per year per person), and if the individual gift is in excess of that amount, the lifetime exemption may be invaded up to $5,250,000. After that, a gift tax would be payable. The specifics of how to accomplish this should be discussed with a tax/estate planning professional. Properly done, a gift of this sort could be really valuable with no gift tax being payable, but it must be done correctly; also a gift tax return should be seriously considered. A capital gain tax would be payable if there is gain upon the SALE of the property. No capital gain tax is payable for a gift. Note however, that the one receiving the gift will also inherit the giftor's basis in the property. Again, this can be a complex arena; tax counsel should be consulted to advise on how best to accomplish the desired end result. Hope that helped.


  3. As the others mention, answering specific questions regarding a trust is difficult, as a number of factors dictate the outcome, including trust language, the trustee, whether the parents are still alive, and state estate tax issues. A review by an attorney would help you dramatically.

    Matthew Johnson phone# 206.747.0313 is licensed in the State of Washington and performs bankruptcy, short sale negotiations, and estate planning in Whatcom, Skagit, Snohomish, King and Pierce counties. The response does not constitute specific legal advice, which would require a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter; rather, it is intended to be general legal information based on the limited information provided by the inquirer; it This response also does not constitute the establishment of an attorney-client relationship, which can only be established after a conflict of interest evaluation is completed, your case is accepted, and a fee agreement is signed. Johnson Legal Group, PLLC


  4. I agree with Mr. Greenwood's response except that in my opinion a gift tax return should absolutely be filed. Filing a gift tax return starts the statute of limitations running in regard to the IRS challenging the valuation of the gift.

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