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Why should I transfer investment property into an LLC?

by Vitruvix Media
July 14th, 2023

For owners of rental property, transferring real estate into a limited liability company is a popular strategy to protect their personal assets from the LLC’s debts and liabilities.

Owners of an LLC, known as members, commonly use this type of business entity because it can separate their personal assets from the company’s creditor claims, debts and other liabilities.

Separation of assets is vital because it only takes one slip on a banana peel by a tenant and a multimillion legal judgment to put not only investment property but also your personal assets within the grasp of successful creditors if your business structure is a sole proprietorship.

Who owns the property in an LLC?

In a limited liability company, the property is owned by the LLC itself, not by the individual members. Because an LLC is a separate legal entity, it can acquire, hold and manage property in its own name.

The ownership of the property is represented by the members’ stake in the LLC. Those members’ interests are typically determined based on their contributions and ownership percentages detailed in the operating agreement. These ownership interests represent the members’ financial stake in the LLC, but they do not represent direct ownership of the property itself.

The LLC structure provides asset protection by separating the property from the personal assets of the individual members. So, if there are any legal claims or financial obligations that arise from the property, they are usually limited to the assets of the LLC and do not extend to the personal assets of the members.

Laws that govern LLCs vary from state to state, so it's important to keep in mind that rules governing an LLC depend on the jurisdiction as well as provisions outlined in the operating agreement.

While protecting personal assets from liability is a key goal, there are some other positive outcomes – but some potential negative consequences as well – when real estate is titled in the name of an LLC. For example, beyond liability protection from the fallout caused by a wayward banana peel, having an LLC own your investment property can also provide tax advantages and additional protection for your personal assets in case your rental business declares bankruptcy or faces other legal claims.

Does an LLC provide tax advantages?

An LLC member has some flexibility in how the business entity can be taxed. The default tax treatment of an LLC depends on the number of members it has.

Single-member LLCs are considered disregarded entities, and the IRS does not treat a single-member LLC as a separate taxable entity. In a single-member LLC, the profits and losses pass through on the member’s personal tax returns. This can provide benefits such as deductions and the potential to offset losses against other income. It also means that a single-member LLC isn’t required to obtain a separate employer identification number (EIN) or submit a separate tax return. Also when spouses own the LLC together and have community property ownership, the LLC remains a disregarded entity despite having multiple members. In the event an LLC has multiple non-spouse members, the LLC is taxed by default as a partnership and does require an EIN and separate tax return to be filed.

By default, a multi-member LLC is classified as a partnership for tax purposes. The LLC itself does not pay income taxes. Instead, the profits and losses of the LLC are passed through to the individual members, who report their share of the LLC’s income and expenses on their personal tax returns. If taxed as a partnership, the LLC files an informational tax return, which includes the LLC's income, deductions and distributions to the members.

The members’ tax liability is based on their share of the LLC’s taxable income, regardless of whether or not the LLC distributes the profits to the members. Such profits are referred to as “phantom income,” which can occur when the partnership generates taxable income, but the partners do not receive a corresponding cash distribution.

LLC members also can choose to have their LLC treated as a corporation for tax purposes, and the LLC would be subject to corporate income tax rules.

What are other benefits of an LLC owning real property?

Toy wood blocks leaning against wooden block house

Transferring property into an LLC also can provide some estate planning benefits such as the potential for probate avoidance if property includes a transfer-on-death provision as part of the operating agreement. When probate is avoided, it saves time and money for beneficiaries and heirs of the property owner.

Another benefit is that transferring ownership to an LLC allows for a clear management structure. The operating agreement can define the roles and responsibilities of the owners, managers and investors, decision-making processes and profit distribution. This can help facilitate smoother operations and mitigate conflicts among multiple owners. Plus, with an LLC, transferring ownership interests can be relatively straightforward. If you decide to sell or transfer part of your ownership, it can be accomplished by transferring membership interests in the LLC, simplifying the process compared to transferring the property directly.

What should I consider before transferring property into an LLC?

There are several legal and financial issues to consider before transferring ownership of property into an LLC.

One key concern deals with how the property is financed. If the property is financed with a mortgage, its transfer could trigger an acceleration or “due-on-sale” clause. Because the transfer of property to an LLC is considered a change in ownership, it can enable the lender to “call” the loan and demand immediate repayment. That’s why it’s vital to understand your loan documents to determine the impact on your financing arrangements. Another concern to consider is that financing of the mortgage could be more expensive as the property is treated as commercial property instead of personal property.

The property transfer also requires the title of real estate to reflect the new ownership, and the value of the property may need to be reassessed for tax purposes. It also requires that property and liability insurance be updated, and this could cause higher commercial rates to be imposed, and the transfer also could result in the loss of title insurance. The reassessment to fair market value – without homestead reductions or limits on increasing value – could also take place. The transfer also could result in the loss of creditor protection in some states, including Texas and Florida if the property was classified as a homestead.

Can a property transfer into an LLC cause gift tax implications?

The transfer of property into an LLC can potentially trigger federal gift tax implications. The exact potential for federal gift tax depends on several factors, including the value of the property being transferred, the ownership structure of the LLC and the specific circumstances surrounding the transfer.

In 2023, the IRS allowed an annual gift tax exclusion amount is $17,000 per recipient, which means that if the value of the property being transferred into the LLC exceeds the annual exclusion amount for the recipient, there could be gift tax obligations. The transfer could have gift tax implications if the current owners of the real estate and the members of the LLC are different people.

In addition to the annual exclusion, individuals also have a lifetime gift tax exemption. This exemption allows for a certain amount of gifts to be made over a person's lifetime without incurring gift tax. However, it's important to note that using a portion of the lifetime exemption reduces the available exemption for estate tax purposes.

Determining the value of the property being transferred is crucial for gift tax purposes. The IRS requires the fair market value of the property to be established at the time of the transfer. Appraisals or professional valuations may be necessary to support the value assigned to the property.

Another area of concern deals with the Corporate Transparency Act, but its impact on transfers of property into an LLC is indirect. While the CTA itself does not directly address property transfers, it can have some implications that indirectly affect such transfers.

Because of the CTA, financial institutions involved in property transfers may conduct more extensive due diligence on LLCs to ensure compliance with the CTA. This could lead to additional scrutiny and documentation requirements when transferring property into an LLC.

There also is a potential impact on privacy and confidentiality. The CTA's beneficial ownership disclosures, such as names, addresses and identifying numbers may become part of the government's secure database and potentially be accessed by authorized entities for law enforcement purposes. This could impact the privacy expectations of the individuals associated with the LLC and property transfer.

Summary

One of the significant advantages of transferring ownership to an LLC is the limited liability protection it provides. The LLC structure separates the property from the personal assets of the owners, shielding them from personal liability in case of lawsuits or financial obligations related to the property.

By placing the investment property in an LLC, you create a barrier between the property and your personal assets. This can help safeguard your personal wealth in case of unforeseen circumstances, such as legal claims or bankruptcy.

An LLC also offers flexibility in terms of tax treatment. By default, an LLC is considered a pass-through entity for tax purposes, meaning the profits and losses pass through to the individual owners' personal tax returns.

However, there are important financing considerations to keep in mind. If the investment property is currently financed, transferring it to an LLC may trigger a due-on-sale clause, potentially requiring immediate repayment of the loan. It is crucial to review the loan documents and consult with the lender to understand the impact of the transfer on the existing financing arrangement.

Financing an investment property owned by an LLC might be more challenging compared to financing it personally. Lenders may have different criteria and higher interest rates for commercial or LLC-owned properties.

Also, transferring ownership of a property to an LLC might trigger transfer taxes and reassessment of property taxes, depending on local regulations. These costs should be considered when assessing the financial implications of the transfer.

It is crucial to consult with financial and legal professionals to evaluate your specific situation and understand the legal, financial and operational consequences before deciding to transfer ownership to an LLC.

In short, transferring ownership of an investment property to an LLC offers limited liability protection and separation of personal assets from business liabilities. It also provides tax flexibility and simplified property transfers. However, financing considerations, potential tax implications, reassessment of property values, insurance updates and the impact of state regulations should be carefully evaluated before proceeding with the transfer.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

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Email - info@legacyassuranceplan.com
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