By Mary P. O’Reilly amd Andrew L. Baron
Estate planning for clients in the investment real estate business is fraught with potential landmines that require careful consideration to ensure an effective plan. A key consideration for any estate plan is maintaining family harmony. This is particularly difficult for families in the investment real estate business, where the goal is often for all children-both those who are in and those who are outside of the business-to retain a stake in this income producing asset. The tax aspects and illiquid nature of investment real estate also present unique challenges. In addition to the estate tax, which is typically the main focus in estate planning, income taxes must also be a key consideration because many real estate clients have so-called negative basis due to depreciation, refinancings, and past income tax deferral under Section 1031 of the Internal Revenue Code (the Code). Access to financial leverage also plays a critical role in estate planning for investment real estate families. Consideration must be given to ensure transfers do not violate existing loan covenants and take into account future access to financing. This article will explore each of these areas and provide suggestions on how to effectively navigate around these issues to build the most comprehensive and effective plan.
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