The Dark Side of Proposition 19: Its Dramatic Property Tax Increase on Inherited Property – Why You Should Consider Gifting or Selling Family Property to Your Children Before February 15, 2021

  • November 19, 2020
  • devinlucas

Lucas Real Estate – Attorney Devin Lucas and CPA Courtney Lucas – are experts in California intra family transfers using all aspects of Propositions 13, 58, 193, 60, 90 and new Proposition 19. Learn more about how Lucas Real Estate may help your family transfer by clicking here.

Editorial Summary

California Proposition 19 is a massive property tax hike on the next generation of property owners.  It wipes out the current Proposition 58 and Proposition 193 family transfer benefits, effective February 16, 2021.  This is potentially the largest property tax increase in California history… but it will only impact the next generations; this is a new death tax and inheritance tax on real property owners’ heirs.  

Impacted voters should contact their elected representatives to discuss their view (lookup your representative here: findyourrep.legislature.ca.gov) and consider membership or donations to organizations such as the Howard Jarvis Taxpayers Association that advocate for property owners. 

Proposition 19 is a dramatic property tax hike on inherited property.  The impacts cannot be understated for families holding real estate and planning to pass the same to their children or grandchildren.  Note – there are some newly expanded transfer benefits for those 55 and older and victims of natural disasters that will be addressed in a subsequent article.

HOW DOES PROPOSITION 19 WORK AS TO FAMILY TRANSFERS, INTRA-FAMILY SALES AND INHERITED PROPERTY?

Starting February 16, 2021, if you transfer your property to your children (or, grandchildren, if the parents are deceased), via any means (gift, sale, hybrid, estate plan after your passing, etc.) that property will be reassessed to full market value for annual property tax purposes.  Your children will no longer inherit your “prop 13 basis” as had been California law for nearly 25 years.  Only one limited exception will apply (detailed below), but all investment properties, even if the child plans to live in it, will be reassessed to full value upon transfer.  

This revokes the long-standing tax benefits of Proposition 58 and Proposition 193 (detailed article on the enormous benefits of Proposition 58 and Proposition 193 here), overwhelmingly passed in November 1986 and March 1996, respectively, which allowed parents to transfer their property tax basis of a primary residence (regardless of value) to their children and up to $1mm of assessed value of all other property ($1mm of the prop 13 value on rental properties or other investment properties passed to heirs, not based on fair market value, effectively allowing far more than $1mm of property value to transfer while retaining the low bill).  These propositions saved children thousands upon thousands of dollars per year.  (read here to understand dramatic savings of [now gutted] Proposition 58 and Proposition 193.)

No more.  Special interests have uprooted this hallmark financial protection for California homeowners and passed a new death tax and inheritance tax on real property owners.  Starting February 16, 2021, full reassessments will occur on all family transfers, with limited exceptions detailed below.  

Areas with the highest property values, such as Newport Beach, Laguna Beach, Coastal Orange County, San Francisco Bay Area, etc., will be impacted the most; overall, per the Legislative Analyst’s Office, California’s next generation of property owners will be taxed to the tune of hundreds of millions of dollars per year as an anticipated impact of California Proposition 19.  Groups such as the Howard Jarvis Taxpayers Association would argue that figure is more likely in the Billions, with a “B”.

ONE LIMITED EXCEPTION – “FAMILY HOME” WORTH UNDER $1MM AND A BLENDED RATE IF WORTH OVER $1MM

One limited exception to full reassessment exists: the transfer of a “family home” (meaning a home the parents currently live in), to a child, where the child will live in the “family home” within one year of transfer, but only if the home’s fair market value at the time of transfer is less than one million dollars ($1,000,000).  If the home’s fair market value at the time of transfer is greater than one million dollars ($1,000,000), then a complicated formula takes over to blend the old prop 13 basis rate with the portion of the home over one million dollars ($1,000,000).  

This will result in some benefit for many (vs. a full reassessment), but is still a dramatic tax on inherited real property.  $1mm is a pretty low threshold for California real estate, especially in Newport Beach and other coastal areas, and by no means indicates the owners are “rich.”  Indeed, many families purchased homes decades ago for modest sums, only to see their sound investments increase in value, but that does not mean they can afford to pay taxes based on those higher values.  That was the whole point of California’s landmark Proposition 13, and its later offspring with Proposition 58 and Proposition 193.

If the home was not the primary residence of the parents, a full reassessment will occur, even if the child plans to live in that home. 

If the home was an investment property, or a rental, a full reassessment will occur, even if the child plans to live in that home. 

WHAT CAN YOU DO?

Strongly consider a transfer (via sale, gift or a hybrid of the two) before February 15, 2021.  (Our earlier article, linked here, explains the various options for such a gift or sale, and the enormous benefits of Proposition 58 and Proposition 193 that will lapse on February 16, 2021.)

To be safe, anticipate a deadline of February 15, 2021 as a firm recording date for any such family transfer, not a signature or postmark date.  With potential county closures again looming, in-person recordings may not be possible and mail backlogs could continue to grow.  Time is a factor.  

WHY NOT TRANSFER TODAY?

The Step-Up In Basis, aka stepped up basis, aka step up basis.  This favorable tax law currently provides better tax benefits to your heirs at death, vs. during life, by dramatically reducing the capital gains on a sale of real estate post death.  (again, detailed here in our prior article).  However, President-elect Joe Biden proposes elimination of this tax benefit (citations below). Planning on the future of tax laws is always difficult. We know these property tax increases will occur on transfers after February 15, 2021; we do not know what the future holds for the step up in basis.  If the step-up in basis is eliminated, and the transfer occurs after February 15, 2021, that could be an upsetting double tax increase to the heirs. 

An existing loan on the property.  This must be addressed, as an outright transfer would likely violate the “due on sale clause” of the current loan.  Often, the child can “purchase” the home (for any value, fair market or not), obtain a new loan to pay off the old loan, and potentially even use additional equity in the home for the parent’s or children’s benefit. 

Simply not ready to give away assets until death.  This is, of course, a personal decision.  Future tax laws may become more favorable, or less, overtime.  Many make estate planning decisions around these laws; many do not care.  

CONCLUSION

Again, this new property tax increase cannot be understated.  Family transfers starting February 16, 2021 on all rental properties, all investment properties, and any properties not used as the parents’ primary residence, will result in reassessments to full market value, potentially resulting in thousands upon thousands of dollars in new annual property taxes to the next generation of owners, even if the children plan to live there.  Family transfers starting February 16, 2021 on family homes where the parents reside at transfer, and the children will live within one year of transfer, worth over $1mm in today’s value, will result in a partial reassessments, potentially resulting in thousands upon thousands of dollars in new annual property taxes to the next generation of owners.  

Note – there are some newly expanded transfer “benefits” for those 55 and older and victims of natural disasters that will be addressed in a subsequent article.  This article addresses the family transfer portion of Prop 19.   

Property owners should have a frank analysis today about their estate planning and if a transfer, sale, or gift is right for them at this time, before February 15, 2021.  Consult appropriate professionals familiar with these existing and new laws.   

– Devin Lucas

Author Devin R. Lucas is a Real Estate Attorney, Broker and REALTOR®, specializing in Newport Beach, Costa Mesa and Orange County coastal communities, serving individual and investors in residential real estate.

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SOURCES:

Official California Proposition 19 Voter Guide:

https://voterguide.sos.ca.gov/propositions/19/

Official California Proposition 19 Voter Guide – Legislative Analyst’s info: 

https://vig.cdn.sos.ca.gov/2020/general/pdf/prop19-title-summ-analysis.pdf

Official California Proposition 19 Text of Proposed Laws:

https://vig.cdn.sos.ca.gov/2020/general/pdf/topl-prop19.pdf

California Constitution, Article XIII:

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CONS&division=&title=&part=&chapter=&article=XIII

Details of President-elect Joe Biden’s proposal to eliminate the Step-Up In Basis, aka stepped up basis, aka step up basis:

https://taxfoundation.org/joe-biden-tax-plan-2020/#Details

https://www.politifact.com/factchecks/2020/oct/29/facebook-posts/yes-biden-seeks-eliminate-policy-reduces-inheritan/

https://www.forbes.com/advisor/retirement/biden-tax-policy-step-up-in-basis/

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