Consider Tax, Legal, Liability, Succession and Management Issues When Determining How to Hold Title to an Investment Commercial Real Estate
Holding real estate in your name makes investors targets for frivolous lawsuits as property ownership is public record in most parts of the country. There are over 24 million lawsuits in the US each year. Using those numbers, the average American can expect to be sued 3 times in their lifetime. Since it makes no sense paying a lawyer to sue a poor person (and lawyers wouldn’t take a contingency case unless the defendant had easily visibly assets) real estate investors that don’t protect the privacy of their investments will be disproportional sued. Don’t put a target on your head for frivolous lawsuits.
If you have a business, avoid titling real estate in the name of the corporation. Beyond the negative aspects of adding debt to your company’s books (assuming you have financed the property) any suit related to the property will flow through to the company. You will also face these negative situations:
- Separate taxable entity which will pay corporate tax rates
- No preferred capital gains tax treatment
- No ability to pass through losses to personal income tax
Ultimately, the decision on how to hold title to a property depends on many factors including the number and type of owners in the property, the goals of the investor, and whether that property correlates to a business of the owner. Creating and properly maintaining a real estate holding entity to hold title to your investment real estate is a critical component to protect your real estate investment from lawsuits against you personally and from lawsuits against the property that is in the entity from spilling over to you personally.
Properly structured real estate holding companies (LLCs, LLPs, etc) provide asset protection but alone they will not protect you from the time and expense of probate.
Put Real Estate into a Living Trust to Avoid Probate
Probate means court supervision of your estate at your death. Probate is expensive and takes time, so most people like to avoid it whenever possible. Simply having a will does not avoid probate.
A living trust, on the other hand, is a legal document that replaces what you think of as your will. The living trust makes sure your assets go to the people you choose. It also avoids probate upon death or a conservatorship proceeding if you become incapacitated. Properly prepared it allows couples to eliminate or substantially reduce taxes, and eliminate the time and expense of probate.
Many people that have trusts fail to officially put their properties into the trust (“funding the trust”) which can force them into probate. In some counties you can petition the court to include the asset in the trust but its prudent simply to place the property in the trust to begin with.
Putting your property directly into a trust for example, “John and Jane Doe Living Trust” does not provide asset protection. The preferred method is often to place the property into the entity (LLC, LLP, etc) and make the Trust the primary shareholder in the entity. As always, consult your tax and legal advisors for advice on your particular situation.
Read Part 1. Read Part 2
I will post Part 4 on Thursday, October 1st, 2009.
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Alex Zylberglait provides commercial real estate investment advisory as well as research, estate planning, asset allocation, valuation, financing, special assets services, transaction advisory and commercial property acquisition and disposition services.