All Episodes

October 15, 2025 • 15 mins
This week, Todd Lutsky explains why gifting real estate is generally a bad idea with few exceptions. Why gifting real estate to beneficiaries will cost them big time.
Mark as Played
Transcript

Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
This is Ask Todd on the Financial Exchange Radio Network.
If you have an existing estate plan or in the
market for one, Todd Letsky is here to answer your
questions and help you plan for a later life. Ask
Todd is presented by Cushing and Dolan, serving Massachusetts and
New England for more than thirty five years, helping families
with a state and tax planning, medicaid planning, and probate law.

(00:22):
Visit Cushingdolan dot com. Now Here's Todd Lutsky.

Speaker 2 (00:27):
Todd Lutsky joins us now for Ask Todd, your chance
to ask Todd your estate planning questions live on air
right now. Phone lines are wide open at eight eight
eight to zero five two two six three, So get
calling so you can ask Todd your state plan estate
planning questions right now.

Speaker 3 (00:46):
Again.

Speaker 2 (00:47):
Eight eight eight two zero five two two sixty three
is the number. We currently have no one in line,
so remember we can get through usually two to three
of your questions per show. This is your chance to
get right to the top of the line at eight
eight eight to zero five two two six three. Again,
the number to call to Ask Todd your estate planning

(01:08):
questions is eight eight eight to zero five, two, two
six three. Mister Lutsky, how are you doing today?

Speaker 3 (01:15):
I am never better? How you doing? Not great? No,
something's always wrong with you.

Speaker 2 (01:20):
Tubba margin fell on my foot three weeks ago and
it still hurts, it does. I can't believe it's not better.

Speaker 3 (01:25):
Yeah, me neither. Todd.

Speaker 2 (01:27):
Want to talk to you a little bit about gifting
real estate.

Speaker 3 (01:32):
Is it always a bad idea?

Speaker 4 (01:36):
You hate to answer questions like that. The carte blanche
answer is complicated. So I'm gonna do it this way lawyers, Yeah, yeah,
it depends right. I could say that, but I don't
like to say that. So so what I'm gonna say
is that generally it's probably not a great idea, and

(01:59):
he'll come and why, Well, you know, generally you have
probably purchased the real estate long ago, and first of all,
if it's your home, you probably don't want to give
away your home because for obvious reasons, it's your home
and you want to continue to control it and own it.

Speaker 3 (02:13):
Enjoy it.

Speaker 4 (02:15):
But other types of real estate, maybe it's that vacation
home you bought long ago, and you think getting it
out of your you know, your name into a trust
for the benefit of children sounds like a great idea.
Or that rental property that I may have purchased long
ago but have been renting it for let's say over
twenty seven and a half years. I use that because

(02:37):
that's the time in which you can fully depreciate your
basis on rental property. And so if you give those away,
likely those have appreciated over time, and so the built
in gain. And I'll just stick with the idea of
a rental property because they say, oh, get that out
of my estate. Let's say I bought it for one

(02:58):
hundred thousand dollars, depreciated it to zero, it's worth a
million today. That, by the way, is not an uncommon situation.
I make it sound like that's a crazy result. Sure,
And if you give that away, that means there's a
million dollars of gain built in to that to that
property because as zero basis. And by the way, some
of the gain, the one hundred thousand dollars that's associated

(03:21):
with depreciation is taxed at ordinary income, not capital gains rate.
So let's just say thirty percent for easy numbers on everything.

Speaker 3 (03:30):
And I can't say.

Speaker 4 (03:31):
Thirty percent because we've got this Massachusetts millionaire's tax of
four percent, so you could run into that if you're
slightly over that amount. So if you give that away,
you're trapping a million dollars of gain at thirty percent.
If my estate is not over fifteen million come January one,

(03:51):
twenty twenty six, I'm not giving it away to save
any federalist at tax. So that's a forty percent number.
US Massachusetts another twelve percent, that's fifty two percent. Well,
that's that's a good idea. But if I'm only giving
it away to save Massachusetts state tax because I'm under
the exemption amount, well then I'm only saving twelve percent. Well,

(04:15):
I'm trapping thirty percent capital gains to save twelve Probably
not a good idea. So that's why generally that's not
a good idea to give away. But you know, if
your assets have if you're if you're saving the fifty
two percent, then then so be it might might be okay.
So that that's why it's it's probably gonna be the

(04:36):
ninety percent of the time. Probably not unless you recently
bought something and is fully stepped up already. Well, then
maybe that's okay because it has high basis. So hope
that answers your.

Speaker 2 (04:45):
Question talking with Todd Ltski from Kushing and Dolan. Todd's
available to answer your questions live on air right now
During Ask Todd, phone number here at the studio is
eight eight eight to zero five two two six three.
Still room my on the phone line, So get calling
early and often so that you can get your question
answered by Todd. Eight eight eight to zero five two

(05:08):
two sixty three is the number. We're gonna take a
quick break here, but when we come back, we are
going to get to your questions with Todd. That phone
number is eight eight eight to zero five two two
six three. Again it is eight eight eight to zero
five two two sixty three.

Speaker 1 (05:28):
Ask Todd with Todd Letsky every Wednesday at ten thirty
only here on the Financial Exchange Radio Network. Todd Letsky
answers your questions about a state and elder life planning
every Wednesday at ten thirty right here on the Financial
Exchange Radio Network.

Speaker 2 (05:52):
All right, let's get to your calls with Todd. First up,
we got Paul in Lester. Paul, what is your question
for TODDI.

Speaker 5 (06:01):
Thanks for taking my call. So my mother we have
a summer home in Maine. On a lake, and my
mother passed away ten years ago left it to me
and my four siblings in her will, and it's not
The wording is basically it goes to all of us
sequel shares until somebody dies and everybody else gets another portion.

(06:26):
And it's still in my mother's name. You know, it's
never been The tax bill comes made out to my
mother and I'm wondering if there's something I need to
do or should do or so.

Speaker 4 (06:40):
So, Yeah, this is a you need to be very
clear about what the will actually says. In other words, Generally,
wills don't end up holding things in trust because they're
will I mean, could it. It could, but you need
to see what the trust actually says. In other words,
if it says I leave all my real estate equally

(07:02):
to my kids, if living.

Speaker 3 (07:06):
Pay it out, give it.

Speaker 4 (07:07):
To them, does it say that or does it say
hold it in trust for them for their life? Do
you know what it said? Do you know what it
actually says? I just it's very important. Makes a huge difference. Okay,
do you know what it says?

Speaker 5 (07:23):
Yeah, I'm not exactly what it says.

Speaker 4 (07:28):
So here's why it's a huge difference. If it says
and it sounds like it probably does say that it
would say to my kids if living, if not living,
then their piece would go to either their kids or
back to the ones that are still alive. And so
if if it says pay it out, and you all

(07:51):
four were living on the date of mom's death, then
even though the deed has not changed from Mom's name,
and this happens all the time, the law says that
if it's paid, if it says give to my kids,
then the moment mom died, you four kids became title

(08:13):
owners to that property at that moment, even though there's
no deed out of the estate to you. Okay, it's
not required, but a lot of times people do prepare it.
And so what that means is that all four of
you kids actually own it right now. So if there
was a lawsuit or someone got hurt on the property,

(08:34):
they're going to sue all four of you. All four
of you are legally obligated to maintain the property, pay
the real estate tax bills, utilities, up keep maintenance.

Speaker 3 (08:42):
I mean, I assume you guys are all doing that now,
Is that correct?

Speaker 5 (08:45):
It's sadly yift.

Speaker 4 (08:47):
Well again, that's where the sadly part comes in, Right,
we left it to four people. Now what well, what
if all four don't want it? Well, you guys could
get together and say I want to You know, whoever
wants it can buy out the interest of the ones
who don't. If no one wants to do that, you
can always force a sale by petitioning the court to
partition the property, and the court will basically do the

(09:08):
same things. They either sell it or buy each other out.
And so you know, that's really where you are with that.
But at this point it's part of your estate. So
if you died, your estate would likely direct where your
one quarter interest in that property goes, not necessarily to them,

(09:29):
but to your kids or your spouse. So you really
need to plan your estate and figure out what you
want to do with it. But this is an arrangement
that's probably not the way to go. Hope that helps
a little, folks, Planning is always better. In this case,
Mom didn't give away the asset. Mom died owning it,
and there's benefits to that. The guide we're giving away
is making the most of gifting assets. Sometimes we gift,

(09:53):
sometimes we don't. As Chuck asked, do we give away
real estate? Might not be a great item to give.
More importantly, Hey, how do we give? Do we give outright?
Do we give to irrevocable gifting trust for the kids?
What if I want to give something away that's large
and I want to still enjoy it? Well you can,
but you got to use espousal lifetime access trust. Folks,

(10:14):
So many income and gift tax and estate tax issues
to think about when you gift, as well as how
you gift. Learn if gifting is right for you and
how to do it. Get the guide Making the Most
of Gifting Assets eight six six eight four eight five
six nine nine or Legal Exchange Show dot com again

(10:36):
eight sixty six eight four eight five six nine nine
or Legal Exchange Show dot Com.

Speaker 3 (10:43):
Todd got another one queued up for you.

Speaker 2 (10:44):
Here. We've got Tim in Pittsfield. Tim, you are on
with Todd Lutski.

Speaker 6 (10:50):
Hi, I thank you for taking my calls.

Speaker 5 (10:52):
So we have My wife and I are both.

Speaker 6 (10:55):
Seventy and we have only we only have or five properties.
Debt total are worth less than three million. Okay, So
do we go about I'm just going by your information
provided earlier, trusting it or I guess the will doesn't

(11:15):
sound like the best thing either right now? Yeah, probably not,
or do we sell them to them at a reduced rate.

Speaker 3 (11:24):
To your kids?

Speaker 5 (11:26):
Yes?

Speaker 4 (11:27):
So what other assets do you have add to the
three million? The value of your investments, stocks, bonds, mutual funds,
IRA accounts, banks, rough.

Speaker 6 (11:36):
Number, probably no more than three hundred to three point
five million, So.

Speaker 4 (11:41):
Another another five hundred thousand, So the total estate is
three point five yes, okay, so five hundred of of
what we call money assets. Okay, So first and foremost,
you mentioned selling it to your kids at a reduced value.
First of all, why on earth would I even want
to do that. I don't see any benefit unless there's
some reason. I'm not seeing that your family, your kids

(12:02):
need to own this real estate. Now, there's really no
benefit in one gifting it to them, because I'm sure
there's built in gain, meaning you bought it a while ago,
rented it, depreciated it, so there's probably a lot of
built in gain here. So so getting an asset by
gifting it to kids out of the estate is not
helpful because I'm trapping all the capital gain. It's not

(12:23):
helpful for you because your entire estate is under four
million dollars and with basic trust planning, we can eliminate
your Massachusetts estate tax. You're already under the federal exemption,
so you have no forty percent federal tax to deal with.
And so if I gifted away, I save nothing on

(12:45):
the tax front, but I trap a thirty percent capital gain.
Whereas if I do trust planning and keep it for
each other first and then the kids, now I can
pay nothing on the estate tax front, and then by
dying owning it, get a full step up in basis
on these assets, which means that the fair market value

(13:08):
will equal the basis for the children. So if they
later sell it, there's zero capital gains tax. So now
we're winning on the estate tax front and the capital
gains tax front.

Speaker 3 (13:21):
Home run.

Speaker 4 (13:22):
Also, I've not exposed it to my kids creditors sooner
than I need to. So selling it for a less
amount or gifting it, I'm thinking, is a bad idea. Now,
having said that, what should you do? Well you're seventy.
If I want to make sure these assets go to
my children later, I would set up two irrevocable medicaid trusts.

(13:46):
Why because I want to make sure they go there.
I want to make sure that if I keep them
my whole life, that there's nothing that could interfere with
them getting it, like taxes or like a nursing home
or some other medical event that takes these assets because
we have to sell to pay bills. So that's where

(14:07):
I would set up the irrevocable trusts and you could
remain in control of these assets. You can continue to
rent them and collect your rent, which I know is important. Again,
why would I want to give away my rent? This
could be something I use in my retirement. And you
can still control the ability to perhaps gift them away
if you want to gift them away later, or sell

(14:28):
them later and replace them with something else. So you
will get to keep a lot of control over these assets,
and at the same time eliminate the capital gains tax
by getting a step up in basis, and eliminate the
federal and state estate tax. So this is a great question, folks.

(14:49):
Please don't just give away assets. Here not always the
smartest tax play.

Speaker 2 (14:57):
Todd, appreciate you joining us today.

Speaker 3 (14:59):
Thank you so much for the time. Always a pleasure.

Speaker 1 (15:03):
This has been asked Odd on the Financial Exchange Radio network.
Ask Todd with Todd Lutsky has been presented by Cushing
and Dolan, serving Massachusetts and New England for more than
thirty years, helping families with the state and tax planning,
Medicaid planning, and probate law. Call eight hundred and three
nine three four thousand and one or visit Cushingdolan dot com.
The views expressed in this segment are solely those of

(15:24):
Cushing and Dolan. Armstrong Advisory does not provide any legal
or tax advice. Please consult with your illegal or tax
advisor on such matters. Cushing and Armstrong do not endorse
each other and are not affiliated
Advertise With Us

Popular Podcasts

CrimeLess: Hillbilly Heist

CrimeLess: Hillbilly Heist

It’s 1996 in rural North Carolina, and an oddball crew makes history when they pull off America’s third largest cash heist. But it’s all downhill from there. Join host Johnny Knoxville as he unspools a wild and woolly tale about a group of regular ‘ol folks who risked it all for a chance at a better life. CrimeLess: Hillbilly Heist answers the question: what would you do with 17.3 million dollars? The answer includes diamond rings, mansions, velvet Elvis paintings, plus a run for the border, murder-for-hire-plots, and FBI busts.

Crime Junkie

Crime Junkie

Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies! Crime Junkie is presented by audiochuck Media Company.

Stuff You Should Know

Stuff You Should Know

If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.

Music, radio and podcasts, all free. Listen online or download the iHeart App.

Connect

© 2025 iHeartMedia, Inc.