Legal Question in Real Estate Law in California
My father, who is not currently resident in the United States and therefore not subject to U.S. income or estate taxes, will be buying a residential property here which will eventually be inherited by me and my two sisters ( 3 of us).
What is the best way to hold the property?
1) Have all 3 sisters be named on the deed with our 3 names?
2) Form an S-corporation where all 3 of us sisters are named shareholders and have the S-corporation be named the owner on the deed?
3) Have my currently non-resident father be named the owner and then upon his death, transfer the property to our names at that point or have it sold at the time and split the proceeds up among us sisters(heirs)? Only thing is he may be a U.S. resident upon his death as he is considering retiring here.
3 Answers from Attorneys
That's the kind of question that calls for paid research if you really want to be able to rely on it. If you get a free answer here, I can pretty much guarantee you'll get what you pay for it. There are significant tax consequences to each choice, so be careful.
Tax laws are not dependent upon whether the person is a resident of the US or not. If the property is in the US, and to a large extend if the money is earned here, it is subject to US taxes. Otherwise, non-residents would have a large economic advantage over residents, whlich would be stupid for a government to provide. The law of the state in which real propety [land, houses] is located normally applies as to what taxes are owed and how it must be handled upon the person's death.
Please see the numerous prior responses from several different attorneys on this site who allagree that in general a parent should always keep their name on the property and never add their children as owners, even though they will be the only heirs under the Will. One reason is that upon yuor father's death the property takes for its basis in deciding what the capital gains will be once it is sold, the falr market value on his death will be the new basis. Assume the property will go up in value after he purchases it, if your names are put on the deed when he buys it you will be paying capital gains tax upon its sale, but if you are not on title and get it as an inheritance and immediately sell it there is no capital gain so no tax.
I think methods #1 and #2 are not very good ideas - too complicated, too much tax exposure. Also, your father could not be a stockholder of the S-corp. (although that's probably not part of your idea) because he is a non-resident alien. The best method is #3, and in particular you should consider a living trust, of which your father would be the trustor (or settlor) and initial trustee, the three sisters would be the beneficiaries, and one or more of you would be the successor trustees. Find an attorney who specializes in wills, trusts and estates, preferably one who speaks your father's language (assuming it is not English).