November 17, 2020

Estate Planning Changes Related to California's Proposition 19

6 min

Proposition 19 (Prop 19) recently passed in California and contains two relevant changes in California property tax assessments that may impact your estate planning. To ensure that you are not unaware of or adversely impacted by these changes, the Venable team has prepared this summary of relevant estate planning information for your review.

Changes to the Parent-Child Exclusion

Prop 19 limits the availability of the parent-child exclusion for purposes of real estate tax assessments. This aspect of Prop 19 takes effect on February 16, 2021.

Under current law, when a parent transfers ownership of his or her principal residence to a child, the property's value for tax assessment purposes is not reassessed, regardless of how the child uses the residence. In California, transferring a parent's home to one or more children is permissible under current law without triggering reassessment, and the child or children could use it as a vacation home or a rental property.

Prop 19 changes this by requiring that the child or children use the residence as their own principal residence or it will be reassessed. Furthermore, even if the child uses the residence as his or her own, there is a cap of $1,000,000 on the exclusion, as explained below. Technically, the new and old rules apply where a child transfers the residence to a parent, but this is much less common.

This change to the parent-child exclusion may also affect many common estate planning trusts that were established several years (or even decades) ago. For example, a qualified personal residence trust (QPRT) allows the transfer of a residence to a trust while that residence can still be occupied for a fixed number of years. The parent(s) continue to live in the residence as their primary residence, and at the end of the fixed number of years, the residence transfers to someone else (typically their children or a trust for their benefit). Most parents who establish QPRTs want to continue living in the house after the fixed term ends. They may do so, but they need to pay rent to the trust or to their children, depending on who owns the residence at the end of the fixed term.

Under existing law, when the children become the owners they would qualify for the parent-child exclusion. But once Prop 19 takes effect, the children would need to use the residence as their primary residence or trigger reassessment. They could not rent it back to the parent, and if siblings are entitled to the residence at the end of the fixed term, they would need to move in together and share a household to qualify for the exemption – which perhaps is not ideal for most adult children. If parents have QPRTs whose fixed term ends on or after February 16, 2021, the value of their home may be reassessed to its current value. This could lead to a massive property tax increase, though it may be possible to mitigate this. Those with an established trust that holds a residence and names their children as remainder beneficiaries, or those planning a transfer of a home to their children outright or in trust, should contact their tax and wealth planning attorney at Venable before the effective date of this new law. It is critical that we review your estate planning documents and recommend any necessary changes.

If your home has increased in value significantly from its taxable value, Prop 19 adds certain limitations that could result in an increased assessment. This new rule will apply to outright transfers and to transfers in trusts, such as the QPRT transfer illustrated above. If the increase in value is less than or equal to $1,000,000, no adjustment is made. If the increase in value is more than $1,000,000, the increase in value after the first $1,000,000 is added to the tax assessed value. For example, assume a parent's home has a taxable value of $3,000,000. Because the parent purchased the home many years ago, its value is now $5,000,000. In other words, it has increased by $2,000,000. The new reassessed value if the parent gifts the home to her child will be $4,000,000. There are inflation adjustments that apply to the $1,000,000 increase limitation for subsequent years.

Changes to the Transfer of Taxable Value for Certain Property Owners

The other relevant change in Prop 19 is generally beneficial to homeowners. Prop 19 expands the class of people who qualify for a transfer of their taxable value from their current home to a new property.

Under existing law, only homeowners over 55 years of age or certain disabled persons could make use of this benefit. And they could do so only if (1) their new home is in the same county as their old home; and (2) the value of their new home is less than or equal to the value of their old home.

The new law, which takes effect on April 1, 2021, expands the class of homeowners who are able to transfer their taxable value to include victims of wildfire or other natural disasters, regardless of age or disability status. The new law also removes the restriction that the replacement home must be in the same county as the old home. Now such replacements must simply be in the state of California. The new law also allows homeowners to buy a replacement home that is worth more than their old home, provided, however, that the increase in value is added to the transferred taxable value of the old home. For example, assume a homeowner is over 55. Her house has a taxable value of $5,000,000. She sells it for $15,000,000. If she buys a new home anywhere in California for $15,000,000 or less, she can transfer her $5,000,000 taxable value to the new home. This will be its taxable value. However, if she wants to upgrade to a $20,000,000 home, her new home's taxable value will be $10,000,000 – the taxable value of her old home transferred ($5,000,000) plus the upgrade value ($20,000,000 - $15,000,000.)

No real planning needs to be done in connection with this change, but the new rules that apply to transferring taxable value are something homeowners should note. Additionally, the ability to transfer such taxable value is not automatic, and homeowners who wish to make use of the benefit must apply for the benefit by filing a claim with the assessor that provides certain information required by the statute.

As always, Venable is committed to helping our clients maximize tax savings in a complex, ever-changing landscape. Prop 19 will change some of our current strategies and create new opportunities for us to assist our clients. Please contact Venable's Tax and Wealth Planning team if you have any questions or concerns regarding your specific estate plan and Prop 19.