Tag: Estate Planning (12 articles found) - Clear Search


The Series LLC

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Have you heard of a “series” LLC? It’s a special kind of LLC that is available only in a handful of states. Delaware was the first state to adopt it and now about 20 states that offer it and the list is growing.

While it was initially designed for other purposes and industries, the real estate community has jumped on it. So let’s explain what it is. First, it’s an LLC in structure like any other LLC. There are members, managers, an operating agreement and certificate of organization, which is filed with the state. It can be taxed as a pass-through (single member), partnership (multi-member), and it can even make an “S” election with the IRS to be taxed like an S-Corp (although there’s rarely a need for this and it can cause tax complications).

But then, this special LLC is permitted to create what are called “series” within its structure. To understand this, we need to talk liability protection. If you own a rental property in an LLC and there’s a slip and fall, the plaintiff will sue the owner of the house, that is the LLC. Being the defendant on lawsuit means that if there’s a judgement against it, the court can go after ANY asset the LLC has. This would include other rentals. Thus, most investors prefer to separate out their rentals so that the bunch are not as risk if there is a problem with one.

So, investors would set up a holding company (that did not own any rentals) and then a sub-LLC of that for each rental property. So, each rental was in a different company altogether and there was a separation of liability. But, that’s a LOT of LLCs to create and manage! Your attorney will be very fat and happy with you.
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Now is the Time for an Estate Plan

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“Success is not final; failure is not fatal; it is the courage to continue that counts.” – Winston Churchill

Most of us spend a considerable amount of time and energy in our lives working for our families and accumulating wealth.

But unless you're careful, much of it could go to waste.

That's why a well-crafted estate plan is so critical. It ensures that your hard-earned wealth (including intangible, non-financial assets) can pass intact to those you intend to be your beneficiaries, instead of being siphoned off to government processes and bureaucrats, or even being lost. We all dislike handing over our resources to those who don't have our best interests in mind.

A well-made estate plan guarantees that this will NEVER happen to your family.

"But Janet, what happens if I don't create an estate plan? Doesn't the judicial system have easy steps in place for families?"
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The Tax Savings LLC

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Previously, I taught you the basics of how to protect your rental properties. That’s because rentals are long-term assets that build wealth. So, protection is key. But what about flipping properties? There is certainly liability because accidents can happen on the land. But probably not as much liability as having tenants. The difference here is really one of taxation!

The money you make from a rental (rent) is taxed differently than the money you make flipping a home. Rent is passive income. Flipping is active income. And active income is taxed 3 times, while passive is only taxed twice. The third tax on active income is called the “self-employment” tax. And it’s 15.3%! Then, you still pay the other two taxes: state and federal income tax.

Sorry, I cannot help with the income taxes, just like I can’t stop death. But, I can help you lower the self-employment tax! And this tax doesn’t just apply to flipping income. It also applies to wholesaling income, real estate agent commissions and independent contractors! All them can save substantial money by setting up the right kind of LLC.

The Tax Savings LLC is an LLC that has a special “S” tax election on it. That means the LLC has opted to be taxed “like” an S-Corp. I’m sure many of you have heard of the S-Corp. But these days, we don’t’ set up corporations as LLCs are a much easier entity to run. And all we have to do is tell the IRS we want the LLC taxed like the S-Corp and then we get the tax savings.
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Asset Protection – Intermediate

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In our last article, I taught you that the Series LLC forms the base of your asset protection structure. It’s simple, inexpensive and provides a great deal of protection. And you’ll learn the basics of how to run and manage an LLC before getting more complicated.

Many clients, especially as they build their portfolio of rentals, seek out additional privacy and protection. This is great! But it does add layers of complexity and cost. But, as your assets grow, then it makes sense to up your asset protections as well.

For privacy, many investors use what is called in the real estate industry as a “land” trust. These kinds of trust do not exist in Utah and most of the country. But we have a modified version of them investors use that we call “real estate” or “property” or “asset holding” trusts. The key to this trust is that it’s not registered with the state. That means it’s a private document that keeps the owners of the trust totally off the record.

Most investors use these trusts to “hold title” to the property privacy purposes. However, these trusts do not provide any asset protection! So, you still need an LLC that will own the trust. Then the trust owns the house. See how that sticks an extra “layer” in between the property and yourself?

On the county land records, only the trust appears, not your LLC. And since the trust isn’t registered anywhere, no one can find out that your LLC is even involved. This can keep plaintiff’s from seeing all your assets and believing that you are a big target for a lawsuit.
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Asset Protection – Basics #3

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In our last article we explained how the LLC can offer great protection for your personal and real estate assets as well as provide some great additional benefits. In this article, I’m going to discuss what you need to get that protection! Here we are talking about the LLC to protect your rental properties!

NOTE: This is a different LLC than you’d use for your flipping, wholesaling and other real estate investing areas! That we’ll discuss in two weeks!

This LLC should be formed correctly, meaning you need to choose the best way to set it up when it’s first created! An attorney can help with those decisions. Then, you need all the critical documents. The most important of which is the “operating agreement.” This is the “constitution” of the LLC and where you get the protection. Without an operating agreement, all you have is a name and no protection. Only an attorney can create this document!

Further, the operating agreement should be prepared by an attorney with asset protection experience. This is not just another business entity. There needs to be a number of clauses in the agreement that provide the specific protections we mentioned in the previous article. This is where the real value of a good attorney comes in. It will be worth it!

Luckily, we also live in Utah where we also have what is called a “Series” LLC. This is a very special kind of LLC that can own multiple properties at the same time while keeping them separate for liability purposes. This saves you a great deal of money as you don’t need to set up an LLC for every rental! You should work with an attorney who is experienced in these kinds of LLCs as they also have very different documents.
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Asset Protection – Basics #2

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In our last article we warned against going too big too soon with asset protection structures. In this article I’m going to simplify the two kinds of liability that you face as real estate investors and how to protect yourself from them.

The first liability is risk you have while running a business. This is called professional liability. The classic example is a “slip and fall” in a rental or flip project that you own. If that happens, the plaintiff will sue the “owner” of the property. If that’s you, you will get sued and all your personal assets (house, savings, cars, jewelry, etc.) can be lost in that lawsuit if the damages exceed your insurance coverage. However, if you own that property in a limited liability company (or LLC), then the LLC will get sued and your personal assets will be protected!

The second liability is a risk you have just be being alive. This is call personal liability. The best example for this is a car accident you cause while driving. Because you actually caused the damage, you are getting sued, and that means your personal assets are at risk, including your real estate holdings! However, if you have the right kind of LLC set up, you can protect your properties from that lawsuit!

So, the right kind of LLC offers two different kinds of protection from two different liabilities!

There are additional benefits to owning your properties in an LLC. It makes you look professional, running a real business. It helps bookkeeping and accounting because those transactions are all run through a business bank account. Since LLCs can have managers, it will keep the members (owners) private! This way your tenants and prying eyes won’t know that you also own the business. This can help your personal safety as well because angry tenants have been known to come after their landlords.
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Trusts and Real Estate, Part 4 of 4: The Asset Protection Trust

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The asset protection trust is more accurately called the Domestic Asset Protection Trust or “DAPT.” It is a highly protective, irrevocable trust and less than 20 states even allow them. Utah is one of the! Assets owned by this kind of trust can be protected from lawsuits, debt collection, judgments, bankruptcies and even divorce.

This is a different kind of trust than the family trust. In the family trust, you leave your assets to beneficiaries, like your children. In the DAPT, you actually leave the assets to yourself as beneficiary! That means they are still your assets; but they receive the protection as if you’ve already given them to someone else. That’s the key difference. However, it’s not for everyone.

First, this is a complicated and detailed trust. It’s usually more expensive to create and maintain than the other two types of trusts. Second, while you do have access to the income from trust assets, you cannot take “regular” distributions. So, if you need that income to live on and pay monthly bills, you can’t put those assets in this trust. There are also restrictions on who can authorize the permitted distributions.
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Trusts and Real Estate, Part 3 of 4: The Family Living Trust

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The family trust is to most common type of trust used in the United States. Most people have at least heard of this kind of trust and many have created one. The first thing I want to say is that EVERYONE needs a family trust! Whether you’re single or married, with or without children, or have small or large estate, you need a family trust.

The family trust is the core of your overall family protection plan because it is designed to own, control and allocate your assets after you die. Without a trust, your estate will end up in probate even if you have a will. Probate is an expensive, public court process. It typically costs more than a family trust. Your estate and property become public information. And the court will end up dictating who receives your assets.

Most family trusts come in an estate plan package of documents. You’ll get a “pour-over will” that works in coordination with the trust, powers-of-attorney and the health care directive. This last document is also called the “living” will that provides end-of-life instructions to family and doctors in the event you’re on life support. These documents are designed to function in different circumstances and at different times to help control your assets.
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Trusts and Real Estate, Part 2 of 4: The Real Estate Trust

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This article continues our discussion of trusts, specifically the real estate trust. First, only a couple of states, like Florida and Illinois, have true “land” trusts. I won’t get into the legal details on how they are different, as that gets complicated. Just know that unless you live in these states you are NOT using a land trust. This gets confusing as many investors attend educational events where these trusts are taught or sold without distinguishing them.

The rest of us have something a little different. We call these trusts real estate trusts, asset holding trusts, property trusts or the like. They are really just simple living trusts but should be created by a knowledgeable attorney. They are designed to hold title for privacy purposes and facilitate transactions such as wholesaling or even selling real estate.

Trusts are a kind of legal entity (like LLC) that can own things. They can be a named buyer on a purchase contract and be named on county land records. Because trusts are not registered with the state, no one will know who owns them. That’s where the privacy comes in. They do, however, have a trustee (think, manager) who will be named on county land records. So be aware of that.
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Estate Planning for Real Estate Investors

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"Go as far as you can see; when you get there, you'll be able to see further.” - Thomas Carlyle

When a person with assets over $100,000 passes away (as is the case with MOST business owners), their assets will be handled in one of three ways:

(1) if they had no will, their assets will be distributed as mandated by the state probate code through a court proceeding called probate;

(2) if the person had a valid will, the estate will still have to go through the probate process, but the court will carry out their wishes as stated in their will; or

(3) if the person had a valid living trust (and their assets were re-titled in the name of their living trust), their wishes would be carried out in private, without the court's involvement. 

So ... why does this matter to you, as a business owner?

Leaving aside the issue of what happens to the business itself (which is something very much worth its own strategy note -- forthcoming at some point), the answer to the question above depends on how much you care about what your loved ones have to deal with after you are gone and how much control you want to have as to who gets what, and when and how they get it. 
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