The Mostly Real Estate Podcast, with Declan Spring | Inside The East Bay Housing Market

What is Stepped Up Basis in Real Estate? #46 - Attorney Loulena Miles

Declan Spring

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“A well thought out estate plan is an act of love for yourself and your beneficiaries”. So says my guest Loulena Miles

Loulena Miles has been practicing law as a licensed California Attorney since 2003.  In our conversation today we will be discussing a very thin slice of California law - stepped-up tax basis. Loulena was a guest previously, on episode 32 of the show, when our conversation covered the basics of estate planning, and the different main documents that are involved in an estate plan. You are highly encouraged to listen to that episode as well - click here for the link

Unlock the secrets of estate planning with our latest episode featuring the brilliant attorney Loulena Miles. Curious about how a stepped-up basis can impact your financial future, especially if you’re in California? Join us as we decode this complex concept and reveal how it can help significantly lower capital gains taxes on inherited properties. We promise you’ll walk away with a clearer understanding of how to navigate these tricky waters and ensure your loved ones reap the maximum benefits.

Our conversation kicks off by dissecting what a basis means in real estate, highlighting the importance of knowing your property's fair market value, whether purchased or inherited. Through engaging examples like Maggie and Frank's journey, we illustrate how a stepped-up basis can offer substantial tax advantages, particularly in community property states. Loulena sheds light on the common pitfalls to avoid, such as incorrect property titling and failing to obtain necessary appraisals, ensuring you’re equipped to sidestep these issues with confidence.

We also navigate the intricacies of leveraging trusts to avoid probate, which can be a game-changer in reducing stress and costs for heirs. Loulena’s insights help clarify the looming changes in federal estate tax laws, emphasizing the importance of timely estate planning. Whether you're managing an estate now or planning for the future, this episode is packed with practical advice and expert guidance to help you make informed decisions and protect your assets.


Click here for a link to Loulena's law firm, Miles & Torres PC

Declan

I'm here with Lulina Miles, attorney Lulina Miles, Counselor. How are you?

Loulena

Doing great. How are you?

Declan

I'm good. I'm good. I appreciate you coming in this close to the uh Christmas holiday. How's it going for you this year with Christmas holidays? Are you are you on track with your lists?

Loulena

I am very on track with my lists. I even started wrapping presents, um, but I'm a little thrown off by the fact that Christmas is next week midweek. I was not expecting that.

Declan

How so?

Loulena

Well, I don't know. I always thought it I I'm not sure why, but I expect it to be on a weekend and I expect a full week before. And I looked at the calendar, I'm like, wow, it is right around the corner.

Declan

Okay, well, let's double check the date for next year so you'll have a full year to figure that out. It's probably gonna be on a Thursday or Friday, am I right? It has to be. This is a leap year, though, so that always throws me off a little as well. Well, I I uh I wish you every success with staying on track with your lists and getting everything wrapped and having a fabulous Christmas, holiday, and New Year's. Thank you to you as well. Yeah, thanks. Now, you and I chatted before, so Lulina's one of my go-to attorneys, um, very kind and uh and willing to answer what to you might seem like simple questions, but for the rest of us can be real head scratchers. And so you're very you're always very calm and very kind and patient and generous with your time. So thank you. And in fact, you and I chatted before on the podcast on episode 32. Um, that was really cool because it was a Zoom, uh, we did a Zoom class with a bunch of other people, and then I turned it around as a podcast. Uh, episode 32, it was the basics of estate planning.

Loulena

I remember it well.

Declan

Yeah, so if anybody wants to just dive into the basics of estate planning, please go back to episode 32 with Lulina, and there's even um there's a handout in the show notes you can print, and it was really helpful. And I know everybody on the Zoom call really enjoyed your presentation that day. Now we're gonna get a little more sophisticated with ourselves here. Um Lulina, see I really appreciate you coming in because this is a conversation I got into just a little while back with somebody about stepped up uh basis. Um, and you know, somebody had passed away, and now there was stepped up basis, and they were asking me some questions, and I realized, you know what, I I need to go to school. I need Lulina Miles in here to talk. So we're gonna we have a very narrow focus today on stepped up basis. So anybody dealing with anything like this or thinking about it, this is your lucky day because we are gonna talk about stepped up basis. Um, you ready to get right into it?

Loulena

I am.

Declan

Okay then. So what is what is the stepped up basis and how does it uh apply to estate planning in California?

Loulena

So let me step back to start and say, what is the basis? Um when you acquire an asset, it has a tax basis. So when a property is purchased or inherited, the basis is generally the fair market value of the asset at the time that it was acquired. And one of the biggest assets that people worry about tracking, the basis for is their home or an inherited property. If you purchase a home or acquire it by inheritance, the basis is the fair market value of the real estate on the date that you acquire it.

Declan

So so like that's on the date of purchase. Right. Or it could be the date so it'd be the date that somebody passed away. Correct. And then you inherited the property. Right.

Loulena

So even if you didn't actually, you don't think of yourself as acquiring it the date of death of a person, it is technically the if you are the beneficiary, you technically inherit it on the date of death.

Declan

Okay, so you you might either be a new owner because you're inheriting the property, so you're a new owner, or you might be somebody who's lived in the house for decades and your spouse has passed, and now your uh the stepped up basis comes into play on the death of your your spouse.

Loulena

Correct. Right. Absolutely.

Declan

Well, we'll get into let's get into this a little more deeply then. Sorry, go ahead.

Loulena

So, yeah, the basis is a critical number for calculating the tax that will someday be due when you sell the property. So you do need to know what your property's basis is. So now that we've kind of established what basis is, now we can talk about what stepped up basis is. So that happens because of death. It's something that um the property is brought up to fair market value because only because of death in this case.

Declan

Okay, so whenever I hear stepped up basis, it it immediately implies that there's been a death. Correct.

Loulena

Okay, correct. Um when it comes to real estate. Um also accounts. So let me give you an example um of how this can play out and really end up impacting a tax bill.

Declan

Okay.

Loulena

Uh okay, so let's say Maggie and Frank bought their home 30 years ago for $200,000. And at the time of Frank's death, the home is worth $1 million. A common scenario around here.

Declan

Yeah, right.

Loulena

Because California is a community property state and the property was titled correctly as community property on the deed, Maggie receives a stepped-up basis on both halves of the property, her half and her and her late husband's half. So if she then sells the property, say she sells it for $1.1 million, uh, her capital gains tax liability will only be on the 0.1 million gain that happened after her husband Frank's death.

Declan

I see. Okay. Wow. Yes. That is that is a significant tax advantage.

Loulena

Mm-hmm. Yes. It can really save you from being hit with a huge capital gains tax bill.

Declan

That's incredible. And so in in the example you're giving with Maggie and Frank and Frank passing away, and it and it was uh it was uh correctly titled, and it's a community property. So there's no trust or anything in play here at all. This is just a couple of people who've been married for a long time. Right. Property held as community property. Okay. Right. Exactly. All right, so it's automatic.

Loulena

Uh well, that's a different that's that's a different podcast when we talk about probate. So we're definitely not talking about like what kind of rigor moral you might have to go through if you don't have your property in a trust.

Declan

Okay, so correctly titled was an important phrase that you said.

Loulena

Yeah, the titling, well, when I say yeah, and we will get into that today around why it needs to why it's best to have the deed itself actually say community property.

Declan

Okay. All right. So so okay, so let's let's dig a little deeper here. But first I just wanted to ask you um how does California, state of California, handle the stepped-up basis, let's say, in comparison to federal tax law?

Loulena

So California uh state tax recognizes the step-up basis just the same as the IRS. So everything that I am talking about with the IRS applies in California at the state level as well.

Declan

Okay, good to know.

Loulena

I did want to give one more example, a slightly different example on the on step-up basis and how it might play out.

Declan

I I work really well with examples. My mind likes to be able to do that. Yeah, exactly. Yeah, okay.

Loulena

Um so right, so the step-up basis doesn't just apply if you're a married couple. And here's an example for um someone who is a a parent, like say a single person who um has a child. Uh who so in this case, I had a client, Bernice, who was 80 years old, and she wanted her son to inherit her home. To make things simpler for him, she was thinking of just going ahead and putting him on the title on the deed, just give it giving it to him as a gift during her lifetime so that he wouldn't have to worry about transferring the home to himself after she died. Um, she was not thinking about capital gains tax. So I had to explain to her what the downside to this strategy was. The problem is basis. If she gives the property to her son during her life, he would receive her basis in the property. And there would be no step up on the property's basis when she died because she wouldn't own the property when she died. And then if he went to sell the property, he would owe capital gains tax based on the entire appreciation value from the date that she bought the property until the date he sold it. So in the case of him receiving it as a gift, an intervivo's during life gift, he would get her basis.

Declan

I see, I see. So I appreciate her sentiment of trying to make life easier for him and all of that, but the catch there is that they're losing money big time. Right, exactly. Because of the capital gains. Yes. Okay, okay, that's that's hugely helpful to know. Yeah.

Loulena

Yeah, honestly, this is one of the biggest ways to avoid taxes that is available to average people.

Declan

Yeah, I can see that very clearly.

Loulena

Yeah, unfortunately, someone has to die for their loved one to receive this tax benefit.

Declan

Yeah, yeah. Yeah, stepped up uh it always comes because of a loss. Okay, we get that. Are there um are there any special considerations in California related to property taxes when you're using the stepped-up basis?

Loulena

Yes, yes. There is something specific to California and other community property states. It's a specific wrinkle that um non-community property states do not enjoy the the residents of non-community property states do not enjoy. So we really should take advantage of this while we have it. And so this is um for married people only, they can benefit from community property. And what that means is like all property that you acquire during marriage with income earned during marriage is jointly owned.

Declan

Right.

Loulena

So in California, you can get a double step up in basis. So if you own a home with your spouse and one of you dies, just one of you dies, the entire basis of the home is brought up to current market value. And if the survivor wants to sell, they would owe no capital gains tax from that from when the per house was purchased until the date that the house uh until their spouse passed away. So so if it appreciated in value after their spouse passed away, they might owe tax on whatever that is, but not from the from the date that they purchased it together until the date that one spouse passes away.

Declan

Got it. Got it.

Loulena

So I have a I have another example, another little story, maybe to try to illustrate this. Yes, but if so, if Mork and Mindy owned a home together for 20 years and it had appreciated in value for 20 years and then Mork dies, Mindy can sell it capital gains tax-free, no tax due. Now, if Mork and Mindy were not married and owned the property together in unwedded bliss for 20 years and then Mork died, only half of the tax basis would get a step up on Mork's half. And Mindy, if she sold the property, would have to pay taxes on her half.

Declan

So when people talk about marriage uh or not getting married or whatever, this is this is useful information to have here because there's a benefit to marriage here under tax law, right? Right. Okay. Okay. I'm sure there's uh many, many benefits. Oh, that'd be an interesting thing to talk about another day, but not today. Okay. Well, that's a great example. So um, how does how does the stepped up basis affect capital gains for heirs uh when they sell inherited property in California?

Loulena

So if Mork and Mendy both died and their three children inherited the property and wanted to sell, they would own no capital gains tax so long as they did not wait very long to sell.

Declan

I see, okay. And and didn't wait very long to sell because obviously there's appreciation on the daily. Right. Right?

Loulena

Okay, usually not always, but generally that is the case.

Declan

Yeah, so typically they'd sell within the first you know, six months to a year if they wanted to. Right, okay, I understand. Okay. Are there any um are there any specific strategies, you know, to maximize the benefit of the stepped up basis for heirs?

Loulena

Uh I mean, the biggest thing I can think is just don't put anyone on title with you unless you are married to them. So that the property will get the step up, the full step up and basis when you die.

Declan

Okay.

Loulena

And frankly, to minimize the headaches of co-ownership, but that is another podcast.

Declan

Yeah. You want to come back in and talk about co-ownership at some point?

Loulena

There is a lot of potential problems with it, but it can be done very intelligently as long as you go in with open eyes and you have some good counsel and you write and you really get great contracts. There are co-ownership agreements that you can have drawn up.

Declan

Yeah, yeah, yeah. You're right. It can get very tricky. Just like, frankly, just like um just like uh any marriage can can end, and some end well, and some end poorly. Um, it's difficult, right? Yeah, co-ownership is tricky. Okay, let's get back to our stepped up basis. So, how does California's estate tax and inheritance tax impact the use of a stepped-up basis?

Loulena

So, federal estate tax currently only applies to those who die holding more than 13.6 million for an individual or twice that amount for a married couple. So, for assets that are above that 13.6 million threshold, the federal estate tax goes up to 40%. Um, the 13.6 million number is not fixed. Uh, the tax scheme created by the Tax Cuts and Jobs Act of 2017 is set to sunset on December 31st, 2025. And when it does, it's going to cut these numbers by half. So it would be roughly 7 million per person at that point. But but um with the incoming administration in Congress, this tax scheme is likely to be extended indefinitely instead of sunsetting. Right. Uh, and in California, there's no separate state-level estate tax, so that's not an issue.

Declan

Okay. I I agree with you that it it it's probably not going to uh sunset. Right.

Loulena

It was originally Trump's plan that went in in 2017, so he's definitely, you know, gonna want to stick with it if he can.

Declan

Right. He's gonna want to keep that in place for sure. Um what are the key differences in tax treatment if I leave my assets to my spouse versus let's say other uh beneficiaries?

Loulena

So a spouse will not have to pay any estate tax because spouses can pass an unlimited amount um of assets to each other tax-free. So if you leave everything to your spouse, the surviving spouse um can elect portability at the time of the first spouse's death to claim the unused estate tax exclusion amount from their deceased spouse. Um, but in order to do that, they need to file a tax form of 706. Um, and it has to be filed within nine months after the death of their spouse. Um and so I can give you an example of this if you'd like. Um so, like, say a wife dies in 2024 and she owns five million in assets at the time of her death, and she gives it to her spouse. He files the 706 tax return and he gets to claim the unused amount that she of estate tax exemption, which in this case would be 8.6 million. Um and so then when he dies, he can pass the amount, the 8.6 million she didn't use, plus his own 13.6 million estate tax-free uh upon his death. So as long as the portability exemption is timely filed, um, there's a significant amount that he can pass without any estate tax. That is really the uh the benefit of being married if you're in that level of wealth.

Declan

Wow. Okay. Well, we can uh we can have goals, right?

Loulena

Yeah.

Declan

Can the um can the stepped up basis be used for non-real estate assets like stocks and bonds in California?

Loulena

Yes, uh, it does absolutely apply to uh accounts like brokerage accounts, for example. Um portfolios do have a fluctuating basis, but um, whatever the basis is before death should be stepped up to fair market value on the date of death. So then if it's sold, there's no taxes.

Declan

So let's get to the fun stuff. Uh I want to ask you about mistakes. Uh because I know you I know you probably see a lot of this in your practice. Yes. You know, or you have to like re-engineer things. Um, so I so are there common mistakes? Um, are there pitfalls people make? Uh and I know there are when they're planning around the stepped-up basis in California. What do you what do you see?

Loulena

Yes, uh, one thing that comes up a lot is um like I have clients where they come to me five years after their spouse died, and they never did anything when their spouse died. And no one really, they never consulted an attorney uh and they didn't get an appraisal on their property when their spouse died. So they don't really know what the basis was.

Declan

Right.

Loulena

And so then now if they want to sell the property during the surviving spouse's lifetime, it's harder to establish what the step up was so that they can claim it to the IRS.

Declan

Right.

Loulena

So yeah, the big point, the take-home message there is you should get an appraisal right away to establish evidence of fair market value when someone dies. And you have to keep those records of the appraisal for as long as you own the property. Another pitfall is one that I've mentioned a little bit, and that is putting co-owners on the property, like non-married partners, children, or co-signers. Right. Uh, this can cause problems in claiming the step up in basis upon death.

Declan

Yeah, that's coming through loud and clear in this conversation, actually. It's that is a that's really interesting. Yeah. Okay.

Loulena

And then, you know, another thing I see from time to time is, you know, people don't want to hire a good CPA when someone passes away. But having that good CPA is important for many reasons. And one of them is forgetting that tax deduction and understanding the step up and basis. Um, and then one thing that comes up all the time, I see it really regularly, is different. When I talked about correctly titling the deed. So often a couple so one thing that happens is sometimes people will buy property together before they're married and then they get married, and then they say, of course it's community property, but the title would not say community property. The deed will not say that because they were not married at the time that they purchased. So uh then, you know, it's it's really looking like if one of them died, even though they're married, they won't get that double step up in basis.

Declan

Right.

Loulena

So when I'm looking at their deeds, I say, as a cautionary measure, we should go ahead and file new deeds that say community property. And of course, I'm a trust attorney, so I'm also filing a deed to move their property into their trust, but I go ahead and I file a deed first that says community property.

Declan

Okay.

Loulena

And that doesn't change anything as far as taxes, just filing it doesn't change how the property is taxed during their marriage, during life, but it would change the step-up and basis. Yes. Upon death, yeah. Uh-huh. Another thing is um joint tenancy or tenancy in common. I see this. Even for people who are married, you know, when they're purchasing the property, they're often not given very good advice or counsel on how the deed should be titled. And so, you know, they come to me and they show me that their j their deed says joint tenancy or tenancy in common, and I'll ask, why does it say that? And they'll not have an answer. Or um, and so then we talk about well, what is the difference between community property and joint tenancy and make sure that it really is their intent that this has always been community property? They've always jointly paid for it, you know, and with income earned during marriage, and it's never been a question. So, you know, if they don't have it titled that way, they may not be able to avail themselves of the double step up and basis and should consider rectifying that.

Declan

I see. That's very interesting. You know what? Um oftentimes when we're we're all the time, when I when I'm helping somebody purchase a property, There a day comes when they have to, you know, sit down and establish how they're besting uh you know what their besting is. And we can't advise them, right, as realtors. So I'm always telling people, look, you should really talk. This is legal stuff, and I'm not an attorney, but here is uh a list of ways you can hold title. Um, you should talk to an attorney. Generally, people don't talk to an attorney, they talk to you know, an uncle or an aunt or mom or dad or whatever, or or they just throw a dart. Yeah, they just throw darts, see what's too much. But actually, it's a really good idea to talk to an attorney, isn't it? Yeah. Because then they might forget down the road, and this comes back, and they're like, oh gosh, we forgot about. Yeah. So it's valuable to really talk to an attorney. Absolutely. Yeah. Um, how does the stepped up basis impact a person's decision to create a trust uh or other estate planning instruments in California?

Loulena

So the trust itself does not impact the step up and basis. So if a property is held by a trust, it's going to get the same step up and basis it would have if it was held in the decedent's name alone. Okay. Uh of course the trust will allow you to avoid probate, which is a costly, time-consuming, and stressful process for most heirs that they have to go through. So there is a great reason to have a trust, but it's not in order to get the step up in basis, of course. And okay.

Declan

So if somebody, if somebody wants to create a trust, say let's say a couple, just let's make it easy. A couple decides, hey, you know, we're we're gonna we're gonna create this trust, they're doing that for reasons separate from anything to do with the stepped-up basis, right? Right. They're establishing a trust to to make life easier for their heirs, essentially. Is that is but is that the main reason for creation of a trust? Yes. Yeah, okay.

Loulena

Right. Um, but there are other reasons too, you know, like if you want um ease of property management during incapacity, uh, ease of business management during incapacity, caring for young children um after you die for long periods of time, the trust can really help with all of those. Right.

Declan

Okay.

Loulena

I did want to say one other thing, and that is about uh sometimes when married couples purchase property and they have a trust, they move the property directly into their trust at the time of purchase. So that's actually another way, other than you know, when you're looking at a deed, sometimes it says community property, sometimes it says joint tenancy, sometimes it says tenancy in common. And the last way is it says it's in your joint trust.

Declan

Uh-huh.

Loulena

And and so I thought I should probably clarify here that if it goes directly, you're married when you buy it, and it goes directly into your trust, that is similar, that will be also giving you the double step up in basis. Okay, because there is a presumption that it's community property in that situation.

Declan

Okay, okay. All the more reason to consult with Lulina Miles when you're when you're trying to maneuver in any direction with especially with well real estate and all other assets too. But um so but essentially, uh you know, the uh if it's in trust and the the trustees are alive and but a you know one person passes away, the step, the stepped up basis behaves in the same way in that scenario as it does outside of a trust and just in community property. That's right. Right, okay, all right.

Loulena

Right. And and when but I should also clarify that we're only talking about revocable living trusts. This is completely a different scenario if we're talking about irrevocable trusts. Like people create irrevocable trusts for tax avoidance and asset protection strategies, like and those are completely different creatures that do affect the step up and basis because when you put property into an irrevocable trust, then that is a separate legal entity and no longer and you're parting with the ownership of the property.

Declan

Okay, understood. And and just to clarify again, when we're we are not talking about income property in this particular conversation. Um, we can do that at another time if anybody wants us to, but with income property, there are additional layers like depreciation and that kind of thing. So we're avoiding that in this conversation for anyone who's listening.

Loulena

Yes, right. That can affect the calculation of capital gains tax and basis. It can change the basis too, yes.

Declan

Yeah, well, you know, that that is essentially everything I wanted to cover today. And people can listen and re-listen, and there's probably transcript as well. Um I just I let's just do this for a couple of minutes though, because I really like it. Because I really do want people to talk to an attorney like you and establish trust. I want all of my clients who buy property to establish a trust. So let me just hear, just uh, and and I'm sorry to put you on the spot, but give me a couple of other scenarios around the value of having a trust and pitfalls and mistakes, because I never get tired of these. I don't know why. What are what are some more common mistakes that you see where you have to re-engineer something?

Loulena

Well, certainly um it's just critical to have the trust so that you know your heirs won't have to go to probe through probate, but also um it's really critical for individuals, for example, who aren't married to have a trust because it will allow the person they choose during their life while they have capacity to step in and manage their affairs, manage their finances, manage their property, make sure their property taxes are paid and their properties are insured if they're incapacitated for any period of time, any significant period of time. And so a trust is just this fantastic way to protect yourself and your property and and really allow you to select who would be in charge if you couldn't speak for yourself.

Declan

Yeah, well said. Hey, listen, any any um just switching gears a little as we look into the jaws of 2025. Um any any changes around any of this in in law uh for 2025 that we should be aware of or or no? Sorry to put you on the spot again.

Loulena

I can't think of anything um okay that's big looming in 2025. Sorry. Okay, no, that's good. That's good.

Declan

We don't need things to get more complicated. And um and so are you headed out of town for any part of the holidays of the new year?

Loulena

I do plan to go to Palm Desert to do some hiking.

Declan

Oh, good for you. That sounds amazing. Well, Lulina Miles, as ever, um, my brain is about ready to explode, but I've taken some great notes. I've learned a lot here today. I hope people listening have also learned a lot. And would you please tell us where people can find you, how people can find you if they feel the need to reach out, which they should, to establish a trust or talk about any other aspect of what it is you do for a living. Tell us where they can find you.

Loulena

So we do have a website, and our website is um www.milestorreslaw.com.

Declan

Okay, I'll put that in the show notes. Go to the show notes if you want to get connected with Lulina. Um, you you attorneys don't do a whole lot of social media. Do you do you have anything?

Loulena

We are on Facebook and we are on Instagram. I'm not as active as I probably should be, but we do have a presence.

Declan

You do. Uh, what's your handle at Instagram?

Loulena

Uh, I think it's Miles Torres Law.

Declan

Okay. Yeah. I'll put that in the uh show notes as well. And so this is your final chance for last words. Anything we missed?

Loulena

Nothing I can think of.

unknown

Sorry.

Declan

All right. Well, there's always a next time. Yeah. And you promise you'll come back when we're doing this on YouTube.

Loulena

Oh, yeah, happy to do it.

Declan

Okay, okay. I'm gonna rustle up some other exciting uh legal avenue for us to go down and discuss. And I really, really appreciate it. Have a great holiday, uh, happy new year, and uh see you after your trip back from Palm Desert.

Loulena

Thank you. Look forward to it.

Declan

Thank you.