Family Sharing of Property - Trusts/LLCs?

Family Sharing of Property - Trusts/LLCs?

Rental Property Investor · San Diego, CA · Member since 2020 · 1 post · 0 votes

Hey BP!  I have an interesting scenario I wanted to run by the forums, as I'm sure some of you have dealt with it before.  I plan on consulting with legal professionals about this, but wanted to throw it out there in case there are other ideas I should think about.
 

I have a young family out in San Diego, and my wife and I own a few properties here.  We're in position to secure another multifamily currently, but it's a little outside our price range.  I love the numbers on it, however.

Simultaneously, my mother and father (living on the east coast) expressed they would be open in the next few years to live in San Diego for 2-3 months of the year and would like a permanent place to stay.  This place would also be ideal for that given it's near our primary home, and we would still maintain some income even while they stay in it given it has 3 units.  Both myself and my father have living trusts with our respective families and children.  I have 2 sisters as well who are recipients of my father's trust.  It is a goal of my father's that if he does make a bulk investment somewhere, that all 3 of us (my siblings) be able to benefit equally from it, not just me. He doesn't want additional monthly expenses either, so needs to be short term rented the other 9 months of the year.  My wife and I do airbnb, and this property would have the curb-appeal to do that, so we'd be comfortable with this.

So I'm trying to look at creative ways to get this done.  Was looking for feedback or other methods potentially that people have done.  

Ideally, I want a scenario where my father helps with 25-50% of the down payment.  In terms of the monthly mortgage payments, I'd be open on taking all of that risk, or a higher percentage of it.  Here's some concepts.  

1) 50/50 down payment and mortgage payments and joint title in both trusts.  We split the income 60/40 (60 to us to manage and upkeep the property).  The loan would go under my wife's name with my father as a co-.  I think this can be done, but not sure.  In this case, when my parents pass, we (my family) retain 50% equity and also 1/3 of their 50% given I'm a recipient of their trust.  Then perhaps I negotiate to buy my sisters out, or just ask my dad to give me less of his other trust assets, and full rights to his 50% upon passing.  I'm not sure how complicated the taxes would be in this case though...e.g. who gets the interest deductions, expense deductions, etc.

2) Start an LLC to manage everything and give my parents some level of member ownership in the LLC. Say they put 100k down, and we put 100k down on 1,000,000 property. We could both be managing partners, but set up a governance such that we have more upside to the deal given we're managing the rentals. In this case, I would be confused how this intermingles with both of our living trusts, however. Can it be referenced in both?

Any ideas or advice welcome!

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  • Encinitas, CA · Member since 2011 · 192 posts · 252 votes
    6y

    You should probably break this down into two parts. The first part is the arrangement you are going to have with your parent's during their lifetime. One possibility is that your parent's down payment gets converted into a second loan on the property, assuming that won't create issues with the first. In exchange for lower interest rate on their loan or deferred payment of the loan you can give them reduced or no rent or whatever will work on the numbers and will work for them. You can also split ownership as you have suggested, but probably the simpler the setup the better.

    The second part has to do with your parent's trust. Once they both pass, a successor trustee takes over to administer the trust. Who is that? you? your sisters? What powers does the successor trustee have and assuming your parents trust has partial ownership of the property does the trust include giving the trustee powers to divide the assets in kind so that the property can be transferred to you completely and your sisters get other assets in kind to equalize distributions. If your parent's investment is a loan to you, that makes things a bit easier. A lot of how this works will depend on your relationship with your sisters and not letting resentment build. If the trust provisions don't match what both you and your parents want to happen, the trust could always be amended during their lifetime.

  • Rental Property Investor · Minneapolis, MN · Member since 2020 · 540 posts · 285 votes
    6y

    @Bradley Johnson

    LLC only. If it's in a family trust your siblings could get involved. The LLC should have Right of first refusal to purchase at a predetermined price or appraised / fair market price so siblings don't decide to "value" it at $5M and then force a sale just to get cash.

  • Attorney and CPA · San Diego, CA · Member since 2017 · 590 posts · 422 votes
    6y

    @Bradley Johnson

    There's several ways you could do this.  As others have mentioned, one question would be who is successor trustee to your father's trust.  Also, does his trust allow for non-pro-rata distributions such that you could take the 50% of the property as your share of the inheritance and your sisters take other assets of equal value?  Your father could possibly put something in his trust that the property should be offered to you first after his death to take as part of your inheritance.  If there isn't enough assets in the trust to equalize the sisters, the trust could take a loan out against the property, use the loan proceeds to pay to the sisters, and you take the property subject to the loan.  Since your father is not a CA-resident, his NY trust may be very different than CA laws, so definitely a few things to ask.

    As someone else mentioned, you could also form an LLC, and usually an LLC will have a right of first refusal language for the other members before the ownership can be sold or transferred.

    However, given that the property is in CA, you will want to be very careful in how you structure all of this for property taxes.  There is a parent-child exclusion that can be used to stop the property from being reassessed when transferred to a child, but it is not available for property in entities, and not available if you were to buy out your sisters.  There are ways around this in entities, but requires planning ahead of time.

    A big issue here will be your relationship with your sisters, whether they would have any interest in the property, and if Dad makes his wishes known clearly ahead of time.  You'll want to consult with an estate planner to prepare for this ahead of time.

    *This post does not create an attorney-client or CPA-client relationship.  The information contained in this post is not to be relied upon.  Readers are advised to seek professional advice.

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