Should your Children have an Estate Plan

Dec 5, 2016

Occasionally, during an Estate Planning conference with clients, this question comes up.  As an Estate Planning lawyer, I should probably be more pro-active about suggesting this topic.  As a professional, however, I always feel some discomfort about coming across as just “selling” services or forms.  So, I tend to soft-peddle the selling aspect of my job, and try to focus on the needs of the client.

It is a question that should be addressed in every client relationship

But it is a good question, and one that at some point should be addressed in every client relationship.  Most of my clients have children.  Many of them are yet living at home, or are in school somewhere.  These are the children my question addresses.  Once emancipated, I think the question is an unequivocal yes.  But for children still “living at home,” whether an estate plan is appropriate is dependent on the circumstances.

As long as children are minors, the parent is generally still their legal guardian, and can make most legal and health decisions for them.  However, it often comes as a surprise to parents who are still “footing the bill” for everything for their children, that they no longer have legal rights to many important areas once their child has reached the age of majority (18 in Michigan and in most states).  And more surprisingly to some parents, in some states, their legal rights may be somewhat limited at an earlier age.

The concern here is not usually any kind of adversary relationship with parent and child.  The concern is that third parties will (and in most cases are legally required) to honor the privacy rights of children.  This means that it can be very difficult in some instances to get information, speak to people on behalf of your children, and generally remain “in the loop.”
it often comes as a surprise to parents who are still “footing the bill” for everything for their children, that they no longer have legal rights to many important areas
Particularly when they were away at college, we had our children execute Durable Powers of Attorney and Health Care Designations of Patient Advocate.  There were a number of instances during those times when those documents came in very handy – both for us and for our children.

In some instances, we have also created Trust Agreements for children who have accumulated some financial wealth.  In most cases, this wealth would be either turned back to the parent, or distributed among siblings.

As a general matter, I believe the answer to the question will often be yes, and that the question should almost always be asked as part of the Estate Planning Process.

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Welcome Clarification on Family Transfers of Residential Real Property and “Uncapping”

Nov 17, 2014


The new law now provides that transfers of property into and out of a trust, and via an estate, to these family members, are exempt, in addition to direct transfers.

Beginning December 31, there is yet another beneficial new exception to “uncapping” of transfers of residential real property between certain family members.

In the early 1990’s the Michigan Legislature passed legislation that “capped” the ability of local taxing bodies to increase the “taxable value” of real property to a the lesser of (currently 1.05%) and the rate of inflation for the year.  The statute attempted to define “transfer,” and also set out a series of exceptions to “transfers.”  Over the ensuing years, other exceptions (notably the Agriculture Exception) were added.  But also during this period, some disagreements arose over the meaning and intent of this legislation.  The was a particularly important issue for family cottages and recreational properties that were passed down from generation to generation.

In 2011, the Michigan Supreme Court interpreted one of these disagreements, in Klooster v. City of Charlevoix, holding among other things, that if at the time all owners at one generation died, but there was also a surviving joint tenant in the next generation (most commonly one or more children), that the survivorship conveyance of title by operation of law was not a “transfer” as the Legislature intended that term.  While I have never been persuaded by the Klooster analysis, who am I to rock the boat – particularly when the decision is basically favorable to the taxpayer?  See my blog, “Michigan Supreme Court Buys Us Another Generation on Real Property Taxes,” from March, 2011.  The Klooster case gave us some new, limited planning opportunities to preserve the “cap” on family transfer of property.  But it wasn’t enough.

It wasn’t enough

In December of 2012, Governor Snyder signed new Legislation aimed at this problem.  See, New Michigan Law Avoids “Uncapping” in Family Transfers.”  But as we will see, the aim was not as accurate as it might have been.  The new legislation (effective December 31, 2013, and on), provided that a direct transfer or conveyance of residential real property to a person related to the transferor “by blood or affinity to the first degree,” where the residential use continued, was not deemed a transfer for “uncapping” purposes.  This rather archaic definition seemed reasonably clear to those of us who took the basic Wills and Estates course in law school, but it left way to much uncertainty on the table.

It remained unclear whether these transfers among family members only applied to direct transfers (which would exclude transfers using Trusts, Wills, Estates and Limited Liability Companies).  If they did, it was – though a welcome forward step – still not enough.

It was still not enough

My own view was that given the history of interpretation of similar issues by local governments and by the Michigan Department of Treasury, combined with the near-bankrupt condition of our state government, they were going to take a very literal interpretation of the statutory language.  In Michigan State Tax Commission Bulletin number 23 dated December 16, 2013, my supposition was confirmed.  They would view this as only applying to direct transfers:  Due to the blood relationship clause, the Commission has defined the transferee and transferor as a ‘person.’  Therefore, this exception to uncapping does not apply to a trust, a limited liability company, or a distribution from probate.”  Transfers to and from estate planning devices like trusts would not come within the exception.  Nor would transfers from an estate, whether by Will or intestate succession.  Again, while there were some additional planning opportunities (the “Ladybird” Deed, for example would work), they were still too limited.  One of the benefits of estate planning – and particularly the trust as a planning tool – is the ability to maintain some management and control where the beneficiaries are either not sufficiently mature to manage, or where there are multiple beneficiaries.  The trust allows ownership and management of assets for the benefit of children, including family legacy real estate (like the family cottage).

Now there is good news

The title of the blog promised good news.  And there is.  On October 10, the Legislature passed still more legislation, clarifying the “uncapping” rules.  Effective December 31, the law now defines those family members within the no uncapping exception more specifically as transfers to “a mother, father, brother, sister, child, adopted child, or grandchild.  And even better, the new law now provides that transfers of property into and out of a trust, and via an estate, to these family members, are exempt, in addition to direct transfers.

We now can breathe easier as estate planners and clients, knowing that we can continue to plan for estates using tried and true techniques.  Like any new law, there will be a period study and analysis and inevitably, questions about clarity of certain provisions and interpretation.

All in all:  I think this is a great development.

Thanks to my Law Partner and fellow Estate Planner, Elian Fichtner for her research and help on this article and topic.  See more about both of us on our website link at the top of the Blog 

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Should You have a “Ladybird” Deed?

Mar 9, 2014


Twenty-five years ago, I was covering for an astute, senior partner at my first law firm employment. I got a call from the title company questioning a deed he had drafted. His proposed form of conveyance purported to convey all but a "life estate," to her son, while retaining the right of the grantor to essentially change her mind and convey the property to someone else at any time during her lifetime. This seemed to go against everything I had learned in law school about vested life estates, fee interests, remainder interests and all sorts of "future" interests in real property. Knowing the drafter was an experienced real estate lawyer, I gave him the benefit of the doubt and did a little research.

Maybe; Maybe not

Michigan Land Title Standards (Std. 9.3), allows for precisely that type of conveyance. I have used it occasionally during my 30 year career, but up until recently, sparingly. While the deed has been around for many years in Michigan, it has only recently gained popular recognition, particularly as a Medicaid planning tool. However, it really is a more diverse and useful tool, and is becoming increasing popular with estate planners. So much so, that currently, one of several most often asked questions when clients call or come in for estate planning conferences is: "should I have one of those lady bird deeds?" My answer: "Maybe. Maybe not." J

The "ladybird" deed is not a one-size-fits-all" panacea for all of our real property estate planning challenges

The Estate Planning process often lends itself to automation, and generalities. In many cases this is unfortunate, as we really should be looking at each individual circumstance as unique and carefully tailoring our planning solutions to that unique situation. So while I am using "ladybird" deeds more often these days, it is actually making me think more carefully about this particular aspect of planning.

Urban legend is that the "ladybird" deed gained its name because Lyndon Johnson conveyed property to his wife using one. This writer finds it hard to believe that Lyndon was the first to use the technique. The technique involves a property concept known as a "power of appointment," and the concept was surely around before Lyndon was even a gleam in the elder Mr. Johnson's eye. But I am content to let legend be legend. One prominent Michigan Probate Judge has opined that it should really be more properly titled a "Deed subject to Life Estate," which is how it is characterized in the Title Standard. The "ladybird" deed is as close as we can get to a "beneficiary designation," on real property here (a number of states actually have statutorily recognized transfer on death deeds, but Michigan is not one of them). It can be used to effect a transfer-on-death conveyance of real property, either to other individuals, or to a trust. I can see some real utility there.

The Estate Planning process often lends itself to automation and generalities

But, whatever we ultimately call it, the "ladybird" deed is not a one-size-fits-all" panacea for all of our real property estate planning challenges. We still need to examine the goals of the client carefully. And not every consequence of the use of this deed is clear.

I recently wrote about the changes to Michigan's real property tax statute, regarding the "uncapping" of taxable value on the transfer of property. One of the advantages of the "ladybird" deed is that it is really not a transfer. The "transfer" occurs on the death of the grantor. And under the new law, a transfer of residential real property to a party related in the first degree, will not be "uncapped" as long as the transferee continues its residential use. But there are traps here, for the unwary. What if I want multiple children to benefit from the family cottage? Remember, the new law addresses a transfer to a person related in the first degree. It does not say to a trust, or other entity established by the transferor for the benefit of her children.  Indeed, the State Tax Commission has recently confirmed my suspicion that they view this exemption as not applicable to Trusts, LLC's, or to a distribution from Probate! (Bulletin 23, December 16, 2013).

Conveyance of property in Michigan requires that the parties file a "Property Transfer Affidavit" with the County Register of Deeds and the Tax Assessor when a "transfer" occurs. Is a "ladybird" deed a "transfer" requiring the filing of this form (L-4260)? Arguably not. But prudence suggests that filing—with an explanation—might be a good practice. More importantly, is there a Form L-4260 filing requirement upon the death of the grantor? I think there is room in the statutory language to conclude that the answer is yes. So, in our planning, we need to think about who will be responsible to ensure such a filing on a timely basis. Form L-4260 has a box to check for "transfer of that portion of a property subject to a life estate." But a conventional "life estate" is different in that both it, and the remainder interest are vested in their respective owners. There is in fact a transfer or conveyance of an interest in property. It is just an "exempt" transfer under the statute (until the Life Estate expires). Technically, there is not such a conveyance with the "ladybird" deed. Until there is judicial or administrative clarification, the proper approach to this will remain uncertain. My thinking is to be "redundant." Perhaps the best (albeit confusing and to me somewhat inconsistent) approach is to check both the "life estate" checkbox and the "other" checkbox, and insert language indicating that the deed was executed pursuant to Title Standard 9.3.

As use of the "ladybird" deed increases, there are bound to be questions by third parties about whether mortgage provisions (e.g., "due on sale clause") are triggered, as well as other restrictive deed items (P.A. 116 liens, conservation easements, etc.) will be affected. Use of this deed, like any other legal tool, requires thought about its application to the circumstances—both current and future. And the answer to the question is, as always: "Don't try this at home."

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New Michigan Law Avoids “Uncapping” in Family Transfers

Feb 25, 2013


Two years ago in March, I reported here on the Klooster v City of Charlevoix case, which addressed the issue of "uncapping" in a real estate transaction between family members. 1994 amendments to the Michigan Real Property Tax, placed a "cap" on the amount a taxing authority could increase the value of real property under consistent ownership. Under the 1994 rules, a taxing authority may raise the taxable value of real property no more than the lesser of 5% and a CPI calculation.

The principal change is new sub-paragraph (s) which provides a new exception for residential real property transferred to a relative who is related by blood or affinity to the first degree (i.e., children)
However, when there is a "transfer" of ownership in real property, the taxing authority may "uncap" the valuation for the "tax day" immediately following the transfer, raising the taxable value as high as the state determined State Equalized Value (SEV) of the property. This can be a considerable increase in taxes for the new owner.

The Klooster Court interpreted the transfer provisions of the statute, holding that where a father added his son as a "Joint Tenant with rights of Survivorship" while the father was alive and while the father remained a joint owner, there was no transfer. That seems to track with the plain language of the exceptions to "transfer" in the statute. In what was a surprise to many of us (most certainly to the City of Charlevoix and municipal entities around the state), the further held the death of the original joint owner (the father) was not a transfer. This lead to a new (for some of us at least) avenue of planning and caused us to re-think our planning strategies see, Some Family Cottage Strategies in Light of the Klooster Case; my follow up to the Klooster article.

Perhaps in response to Klooster and the uncertainty that surrounded its reasoning, and certainly to protect family interests in family-owned residential real estate, the Michigan Legislature passed, and Governor Snyder signed into law in December of 2012, a newer, clearer exception to the "transfer" for family-owned real property. House Enrolled Bill No. 4753, signed into law on December 27, 2012, amends Section 27a(7) of the Michigan General Property Tax Act (MCL 211.27a) to provide several new exceptions. Most are clarifications of existing exceptions.

The principal change is new sub-paragraph (s) which provides a new exception for residential real property transferred to a relative who is related by blood or affinity to the first degree (i.e., children). Notably, the exception does not limit itself to "cottage" or "vacation" property. Nor are the number of instances or parcels limited. Indeed, the Senate Fiscal Agency's "Bill Analysis" acknowledges that the exception is not limited to "homesteads," nor is there any limit to the number of times a single parcel could be transferred to first-degree relatives.

Caution!

It is important to note that this new transfer exception does not become effective until December 31, 2013! Thus, for owners dying before December 31, it may still be wise to consider the strategies discussed at the link above, at least temporarily. Still, this is a welcome change for owners of family real property, particularly in those instances of homesteads and family cottages that may have remained in the family for multiple generations. Like all legal changes, this development will require planners to consider whether old strategies remain viable and what, if any, new strategies may come into play.

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Congress Finally Gives us Answers on Estate and Gift Tax

Jan 4, 2013


To quote former President Gerald Ford, with respect to the Federal Estate and Gift Tax: "our long, national nightmare is over." Late on January 1, Congress enacted "The American Taxpayer Relief Act of 2012." I won't go into great detail about the act (there is a lot about it we still don't actually know and will have to wait for the analysis of people more capable than I am), but will point out the highlights of the Estate and Gift Tax provisions which are of considerable importance to Estate Planning.

The Act preserves the $5 million per person ($10 million per married couple) "unified" estate and gift tax exemption and indexes it for inflation.

The Act preserves the 2012 levels of a $5 million per person exemption, maintains the "unified"estate and gift structure (meaning the $5 million threshold applied to total transfers, whether by gift during lifetime or inheritance on death), and indexes them for inflation. The Act also makes the concept of "portability," which was added in the 2010 extension for the first time, a permanent part of the tax structure. What "portability" means is that for married couples, the $5 million credit can be allocated or "shared" between them at any time, including after death. This effectively eliminates–in most cases–the need for those "clunky," inconvenient, "AB Trusts" ("his and hers"), and all the allocations and adjustments we were constantly making in those plans. This should have the effect of greatly simplifying the planning process in all but a few instances. The only real, substantive change in the law is a (modest?) increase in the rate (which will only apply after the $5/10 million credit has been used up).

What does "permanent" mean?

Most importantly, the Act makes the current Estate and Gift tax laws permanent. One of my colleagues asked me, what does "permanent" mean? I think that is a fair question. In 2000, the so-called "Bush Tax Cuts" were implemented and because of internal machinations in Congress, were built around a 10-year "sunset." This meant that unless Congress acted during the 10-year period, the laws would automatically expire on December 31, 2010. In a demonstration of the "brinksmanship" for which our modern Congress has become so famous for, in late December of 2010, they "extended" the law for 2 more years.

For the first time in the past 12 years, planners will be able to tell clients what to expect in this area. As we move forward in 2013, I expect that many of our clients will be looking at much simpler estate planning devices.  I think that is a plus

But when they extended the general tax laws, they made unanticipated major changes to the Federal Estate and Gift tax. This was in every way a good change. But it was "temporary," because it was part of an extension, again due to expire recently on December 31, 2012. The new law does not have a "sunset" provision. This means that until Congress acts by legislation to change it, it is permanent. That is as "permanent" as any law gets these days.

My personal view, and what I have been able to glean from reading other sources, suggests that Congress has no appetite to make future major changes to this area, for a number of reasons. So, what we now have is some consistency and something on which we should be able to rely for the foreseeable future.

For the first time in the past 12 years, planners will be able to tell clients what to expect in this area. As we move forward in 2013, I expect that many of our clients will be looking at much simpler estate planning devices. I think that is a plus.

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SHOULD YOU BE DOING LARGE YEAR-END GIFTS IN 2012?

Nov 21, 2012


Unfortunately, before we can intelligently answer this question, some history is necessary. With the pending expiration of the so-called "Bush Era Tax Cuts," there is a significant amount of buzz about making large year end gifts to take advantage of the current high gift threshold. Historically, the current Federal Estate and Gift Law scheme dates back to the early 1980's when the "unified estate and gift tax exemption" and the "unlimited marital deduction" were created. A 1986 threshold of $600,000 was set as the amount exempt from federal estate and gift tax transferred by each person. This effectively meant with some careful planning, a married couple could pass $1.2 million to their heirs by lifetime gift or at death before a federal transfer tax was imposed. The amount was capped in 1986 at the $600,000 level. Many of us watched as inflation and growth took our parents' modest estates (often substantially below $600,000) and turned them millions. As we watched, many of us also felt strongly that the $600,000 threshold was no longer a reasonable measure of "modest" wealth and that Congress' failure to address an inflation factor in this threshold was a serious policy flaw.
In 2000, a "conservative" Congress enacted the "Bush Era" tax laws. In the context of the Federal Estate and Gift Tax, those laws made some major changes, but had some perplexing provisions. Inexplicably, they de-unified (if that is a word) the exemptions. They increased the $600,000 Estate Tax Exemption, incrementally over a series of years, to $3.5 million in 2009, and entirely eliminated the Federal Estate Tax (sometimes called the "death tax") in 2010. At the same time they increased the Federal Gift Exemption to $1 million and froze it there. Their plan was that in 2010 and later, there would be no transfer tax on death, the untaxed lifetime gifts would continue to be limited (to $1 million per person). I have never heard a sensible explanation for this "policy." There were some other "nightmarish" provisions in the new law, including a change to "carryover basis" for inherited capital assets.
The problem with their plan was that due to some internal rules, the conservative majority in Congress did not have the numbers to make the changes permanent. So this tax law had a 10-year lifetime, which was due to expire on December 31, 2010. Rather than deal with it, Congress (mostly) "punted" and extended this expiration deadline to December 31, 2012 – right around the proverbial corner!
However, they did some surprising and unexpected things regarding the Estate and Gift tax laws. It gave me some hope that perhaps there would be an end to the seemingly endless uncertainty involve in Estate and Gift Tax planning over the past decade. In late December, 2010, Congress re-instated the Federal Estate Tax (remember, it expired under the short-lived law in 2010), but increased the threshold to $5 million! They also re-unified the credit, increasing the Gift Tax Exemption, also, to $5 million. Then they indexed both of these exemptions for inflation (in 2012, they are slightly over $5 million). But wait – there's more. They also created a new (and long awaited) allocation rule called "portability" (portability means that we no longer had to have separate trusts in most instances for Husband and Wife).
But Alas, all of this is scheduled to end at midnight on December 31. And the aftermath will be all the way back to a $1 million per person unified exemption.
Now, to the question proposed in the title: Should you make large gifts? I like to think of what we have now as a window. At the moment, it is open wide and at its widest opening, there is room to fit $5 million of assets through it ($10 million for married couples). If nothing changes, Congress will close the window most of the way, leaving it open just enough to fit $1 million of assets through it. So, as I view it, there is little to be gained by making gifts of $1 million or less. We will always be able to get that much through the window. Where the gain comes is if we can put more than $1 million through the window, because once it's closed down, we will have forever gotten the excess amount through the window.
When planning year end strategies, we cannot make this analysis in a vacuum. There is always an argument for making gifts of appreciating assets, up to and even above the $1 million discussed above. We move not only the asset itself, but the future growth out of the estate. But we also have to be cognizant of the nature of the asset being moved and whether we can truly afford not to own it anymore. And, perhaps equally importantly, we need to ask whether we want to continue to own it. It has always seemed bad planning policy to me to let tax considerations override the desires of the client.

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The Michigan Property Tax Personal Residence Exemption

May 16, 2012



The Michigan General Property Tax Act authorizes municipal entities, including cities, townships, villages, schools, and municipal "authorities" to levy taxes real and personal property in Michigan. There are two principal exemptions from part of the taxes that routinely impact our clients. The most commonly invoked exemption is the "personal residence exemption" (a/k/a "homestead exemption). The second important exemption is the "qualified agricultural property" exemption (see, Navigating The Michigan General Property Tax Qualified Agricultural Property Exemption). Both exempt the subject property from the school tax. The mechanics of their application differs somewhat.

There is a lot of misinformation out there, much of it by word of mouth. This is an important exemption, as the school tax tends to be one of the highest taxes levied. So, understanding its applicability is worth a few moments' reading.

The personal residence exemption applies to property which is classified by the tax assessor as "residential property." Classification as "residential," does not by itself qualify the property for the exemption. The owner must demonstrate, to the satisfaction of the taxing authority (or – ultimately – the Michigan Department of Treasury), that the property for which they are seeking the exemption is their one, true personal residence.

Obtaining the Exemption

In order to qualify for the principal residence exemption, a homeowner must file an Affidavit of Personal Residence, (Form 2368), which may be obtained on line at the Michigan Government Website (www.michigan.gov/treasury). The affidavit must be filed – in most cases – not later than May 1 of the year the exemption is sought. The Affidavit is filed with the Local Assessor, not with the Treasury Department.

There are instances when a "late" filing can be sought by appearing before the tax board of review (which convenes in most municipalities in July and again in December). It probably makes sense to seek some professional assistance at that point, as there are rules and deadlines that must be carefully observed.

The greatest area of concern is when a residence is purchased after the May 1 deadline. In most instances, the prior homeowner has already filed the affidavit and qualified and the exemption will remain in effect until December 31, after which you may file to meet the May 1 deadline for the following year. The Affidavit need only be filed once and the exemption remains in effect as long as the residence continues to qualify for that owner.

Qualifying For the Exemption

This is the area where the most confusion (and frankly, a fair amount of "license" with the rules) usually arises. This exemption is intended to apply to one personal residence where a resident of Michigan intends to permanently use as their primary home. There are certain indicia that the Department of Treasury (or the local assessor) uses as "proof" of residency. The statutory provision makes clear that it is a matter of intent on the part of the owner. But proof of such intent is sometimes difficult. The authorities will look at things like voter registration address, address on Michigan Driver's License or other Michigan I.D., where the applicant has his or her mail sent, where bills are mailed and the address they use on official tax filing. None of these items alone will be determinative, but they will be used as evidence of intent.

The Michigan Department of Treasury publishes a pdf pamphlet called "Guidelines for Michigan Principal Residence Exemption Program." It is worth noting that in the guidelines, they specifically address the vacation home or cottage issue. Up until just recently, most lakefront vacation property in Michigan was appreciating much more rapidly than suburban or urban residential property. The tax pressure on owners of these properties was enough that many such owners have attempted to make them their personal residence in order to have the exemption apply to their higher value property. Some even attempted to claim both residences as their principal residence. About 10 years back, there was a strong push by taxing authorities to seek out these "transgressors."

The Guidelines make it clear that the state will view this as a matter of reality. In other words, you cannot simply change your driver's license, voter registration and other "indicators," and automatically have the property qualify. You have to demonstrate in a meaningful way that you indeed intend to reside in the property as your principal residence. While there are obviously grey areas (e.g., the "snowbirds," who may spend 6 or more months in a warmer climate), this means that you "live" there – you spend the bulk of your time there.

Multiple Exemptions

It is clear that a homeowner is only entitled to one principal residence exemption. You must be a resident of the State of Michigan and you may not have claimed a similar personal residence exemption in another state, country or territory. You cannot have dual residency, for purposes of the exemption.

What if you are husband and wife? State and Federal laws are nothing if not unclear about this distinction. The general approach is that we treat married couples as a single unit. However there are exceptions. For purposes of the principal residence exemption, if a husband and wife file a joint income tax return, they are entitle to one exemption for their "marital unit." However, if they file separately, they may each claim an exemption. Beware, however, that they will still have to demonstrate the "intent" reality discussed above. In most cases, unless the parties are separated, that will be pretty difficult to do.

Much will depend upon the diligence of the local taxing authorities on all of the above issues.

The Ownership Requirement

This requirement may be among the most elusive – and confusing. Like much legislation, the language is not necessarily consistent, nor clear. For example, the General Property Tax Act refers to the term "person." Yet they don't necessarily consistently apply their interpretation. For purposes of the principal residence exemption, "person" is interpreted as its plain meaning, a "human." A residence that has been transferred into a Limited Liability Company, a Partnership, or some other legal entity will cease to be qualified for the principal residence exemption. While this may seem harsh, it is the law in Michigan. Where we see this application cause the most problems is in the family farm arena, where we are often structuring land-holding entities and family limited liability companies and partnerships. Because there are other complex rules and programs affecting farmland, and because the farmstead and family home are often part of a larger tract of land, family estate and succession planning can become problematic and complex, and attention to detail is important in that context.

You do not, however, need to be a 100% owner of the property. The law says a partial owner may claim the exemption (again, subject to demonstrating that it is their one true personal residence). This means joint owners, and holders of life estates may still claim the exemption.

The law does not specify the amount of ownership. This opens the door to some creative tax and estate planning. For example, a child, parent or sibling could legally own a fractional interest (as little as a 1% joint tenancy interest), but reside in the home and claim the exemption. This, combined with the "uncapping" protections we learned about in the Klooster case (see, "Some Family Cottage Strategies In Light of The Klooster Case") may present some very enticing family property succession strategies.


A residence that has been transferred to a grantor-revocable trust also qualifies for the exemption.  In that case, the grantor (in most cases) is deemed the "person" who is the owner and entitled to the exemption.

Finally, note that you may claim the exemption if you are a Land Contract purchaser. This makes sense because Michigan Law sees such a purchaser as the "equitable" owner of the property, subject to the security interest of the Land Contract Vendor (the so-called "legal owner").

What Property is Covered?

This is another area which is sometimes susceptible to confusion. Adjacent land parcels are often arbitrarily separated by legal description (e.g., by the way they are acquired by deed) or by tax parcel identification code. They may be separated by roads, ditches, waterways, or other natural or man-made obstructions.

The exemption covers all contiguous property to the occupied residence, as long as it is: (1) classified residential, (2) is vacant, and (3) is not used for non-residential purposes. The Guidelines provide several examples of what qualifies as contiguous. Essentially, it is property which is "touching" the property the primary residence is on. A road, ditch, stream, etc., does not destroy contiguity. Another parcel owned by another that is in between does (there is some thought that the state views a corner-to –corner touching as not contiguous, though I fail to see the logic in that view) .

Separately described or deeded parcels or parcels with separate tax code parcel identification numbers, will all still qualify, as long as they satisfy the contiguity requirement. You need not combine parcels in order to have the exemption. You do, however, need to file separate exemption Affidavits for each separate tax code parcel.

The state is dead-serious about the 3 limitations above. If a contiguous parcel has a separate structure on it, it is not "vacant" and does not qualify for the exemption. If any business use is occurring on the contiguous parcel, at least a portion of it will not qualify. The most common example of this latter occurrence is vacant farmland, which is being farmed for rent. In most cases, it will or can be classified as qualified farmland, which will solve the problem. In other cases, it will be important to seek qualified professional assistance.


 


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