Krista Reuther: Hello, everyone. I’m thrilled to begin today’s session and introduce our guest, Kendra. She has some valuable insights to share with us, so I’ll hand it over to her now.
Kendra Strong-Tehrani: Thank you, Krista, and a warm welcome to everyone joining us from across the country. Today’s discussion focuses on “establishing your legacy,” aimed particularly at landlords and real estate investors. As an investor myself, owning approximately eight properties in various states with my husband, this topic is deeply important to me and my family, and I trust it will be for yours as well.
Let me give you an agenda so you know exactly where we’re headed. We’ll be discussing the five levels of asset protection.
Please remember that this presentation is for educational purposes only. While I am a lawyer in Colorado, this webinar does not establish an attorney-client relationship. I encourage you to consult with an attorney in your state regarding anything we discuss here, and I can guide you in getting further information or referrals as needed.
Before law school and for 10 years afterward, I worked in plaintiff’s personal injury law. During that time, I saw the consequences of inadequate insurance from both the plaintiff and the defense sides. Through my experiences, I gained extensive knowledge about the risks of property ownership and saw the repercussions of negligence, often representing clients in court actions against corporations and homeowners.
However, following the birth of my son, I decided to shift away from the high-stress field of litigation. I wanted to make a meaningful impact in a way that served families more directly, and I noticed a significant gap in estate planning. People in their 30s and 40s often overlook this important aspect, so I aimed to address that need, which led me to form Strong Law.
My goal is to change this experience and provide informed guidance. My venture into real estate investing, which started at age 24, shed light on the importance of proper estate planning, something that was not evident to me at first.
This discussion leads us to address a crucial issue: the conflicts and complications that can emerge when estate planning is neglected. Improper planning often results in disputes over inheritance, custody, and assets. These are likely some of the main concerns that motivated many of you to attend today—seeking to protect your families from legal disputes and to ensure your assets are secure.
My personal inspiration comes from my own family, which includes my stepchildren and my two-year-old son, Ari. The unfortunate passing of my mother-in-law last August, coupled with the struggles we faced due to her outdated estate plan, really brought home the importance of staying up-to-date with estate planning. She had properties spread out across Colorado, Texas, and Georgia, and because her estate plan wasn’t current, we had to deal with probate procedures in all three states.
My goal is to offer guidance and help to protect your interests, preventing your loved ones from experiencing similar hardships. Your attendance today likely signifies a shared interest in protecting your family and assets, and securing peace of mind for the future.
We’re going to start by focusing on insurance and estate planning, dedicating considerable time to these areas due to their immense importance. Insurance and a solid estate plan serve as the foundation of your financial security, much like the base of your home. Some individuals think that having insurance equates to being fully protected and question the need for further education in this area. However, insurance doesn’t always provide complete protection, and understanding the details is crucial.
There are a couple of reasons why simply having insurance isn’t enough. Cheaper insurance plans may not offer the coverage you assume they do, leading to denied claims or insufficient policy limits. Just yesterday, I advised my cousin to contact her insurance agent to increase her policy limits after a concerned phone call. Lapsed policies are yet another issue, especially when managing multiple businesses and properties. It’s vital to be aware of what your insurance covers and what it does not.
Concerning liabilities, there are both ‘inside’ and ‘outside’ liability to consider. Inside liability pertains to incidents related to your rental property itself such as water damage, mold, or injuries to tenants and their guests. Outside liabilities are those unrelated to the property, involving your activities, such as car accidents or business-related claims.
My objective is to help you protect your personal assets and ensure you’re not unnecessarily exposing them to risk. Owning real estate comes with inherent dangers, from slip and fall incidents, particularly in areas like Colorado with its snowy weather, to the risks of dangerous animals on your property.
One way to mitigate risk is through solid lease agreements. For instance, I faced a challenging tenant last year and was grateful for a strong lease that protected my interests. Companies like TurboTenant provide state-specific lease agreements, and their platinum membership offers access to unlimited lease agreements—a valuable tool for property owners.
Overall, my experiences in personal injury law have shown me the multitude of risks involved in property ownership, emphasizing the need for thorough insurance and estate planning to safeguard your assets.
Asset protection is fundamental, especially for real estate owners, as properties are considered “hot assets” due to the inherent liability they carry. We’ve discussed various incidents that can occur with property ownership, illustrating the need for protective measures. Unlike financial assets like bank accounts, real estate is physically vulnerable to events that can lead to liability, which is why it’s crucial to separate and shield it from your other assets.
One practical way to achieve this segregation is by placing each property into its own limited liability company (LLC). Some may think this strategy is overkill, but it’s similar to having health or auto insurance; it’s about safeguarding what you’ve worked hard to build before any missteps occur.
Moreover, it’s essential to take these steps proactively. If you attempt to transfer assets only after an issue arises, this could be deemed a fraudulent transfer. Plaintiffs’ attorneys routinely search for indications that business owners are moving assets to avoid legal responsibilities, such as transferring them to spouses or other entities. If this is discovered, a judge could permit the piercing of the corporate veil, laying bare assets that were thought to be protected.
From my experiences in law, I’ve seen the consequences of inadequate asset protection. Therefore, it’s vital to have conversations about asset segregation early on, to prevent future challenges and to start protecting your properties immediately instead of waiting until something goes wrong.
Insurance is a critical aspect of asset protection, and I cannot emphasize enough the importance of this, especially with my background as a plaintiff’s attorney. I’m confident that many, if not all, of you, have some form of insurance, but having insurance is not enough on its own. It’s vital to work with a trusted advisor who can navigate the complexities of your insurance policies. You need to understand the exclusions and precisely what is and isn’t covered; ask questions to gain clarity about your policy.
Do not overlook the importance of carrying underinsured motorist coverage on both your properties and motor vehicles, as well as medical payments coverage (med pay). While these may slightly increase your premium, possibly by a few hundred dollars, they are indispensable for your protection. These coverage options safeguard not only your finances but also other individuals involved in any incident.
I advise giving priority to securing comprehensive insurance on your properties before proceeding with estate planning. From my professional experience, this step is where you should invest first—it’s the best use of your money and the most prudent investment for your long-term security. Having adequate insurance in place is often more immediately protective than any other initial measure in your estate plan.
When discussing asset protection and estate planning, I like to emphasize that this process is about planning for life, not just for death. Unlike many firms that focus on the latter, this approach considers the possibility of incapacity and aims to provide peace of mind for both you and your loved ones.
Regarding estate planning, a crucial question is what will happen to your assets if you pass away or become incapacitated. It’s concerning to note that many individuals—72% of those on this call, for example—do not have an estate plan. Without a personal plan, the state has a default process for you known as probate.
Probate is a standardized, time-consuming, and public process that your estate may go through upon your death if you haven’t arranged otherwise. It’s expensive, takes a long time—currently 12 to 18 months for simple estates in Colorado—and exposes your personal details and those of your heirs. It can be costly due to appraisal fees, bond fees, and attorney fees, and creditors are given priority to your assets. Essentially, probate can feel like a lawsuit against yourself for your creditors’ benefit, and it’s not designed with your heirs’ interests in mind.
Many people believe a simple will is enough to cover their assets, but there’s more to understand about a will’s limitations. A will is a legal document detailing your assets and beneficiaries and guides a probate judge in distributing your assets after death. However, the judge may not adhere to the will in certain conflict situations, and a will does not control all of your assets.
For real estate owners, the title of your property significantly affects asset distribution upon your death. If you hold the title as a joint tenant, for instance, ownership may transfer directly to the co-owner without going through probate, potentially bypassing your family if that joint owner is not a family member.
Wills are simply not sufficient on their own for real estate owners. The takeaway here is that a will may not provide the comprehensive protection you need, particularly if you own real property. An estate plan that includes more than just a will, such as trust creation or changing the way property is titled, can be crucial in ensuring your estate is handled according to your wishes.
Apologies for the oversight. Let’s revisit the original points with additional detail.
The topic of asset protection often brings to light common, yet faulty, planning techniques. Many people mistakenly believe that simply owning property jointly, designating beneficiaries, or adding individuals to bank accounts or deeds provides security and eases the transition of assets. However, these methods can lead to unintended consequences, especially from a tax perspective.
For example, if you add a child to the deed of a property you bought for $100,000 several years ago, when the time comes for them to sell the property, they could face substantial capital gains taxes based on the increase in property value over time. The intention to avoid probate doesn’t justify the tax burden you may unintentionally impose on your heirs.
Avoiding these issues often necessitates the use of a revocable living trust, which is particularly important for individuals in various situations. If you own property—be it a single property or multiple properties—or if you’re a business owner, have minor children, beneficiaries with special needs, or have a blended family, a trust is imperative.
A properly established trust not only bypasses probate, preserving privacy and reducing potential costs and delays for your family, but it also allows for more nuanced control over asset distribution. It’s crucial to ask about the trust funding process, as the effectiveness of a trust is directly dependent on whether your assets, particularly real estate, are titled into the trust. A lack of proper funding leads back to probate, the very thing you are trying to avoid.
To illustrate the impacts of the probate process, let’s consider a single father with minor children who owns a home and an investment property, has retirement accounts, and a life insurance policy naming his children as beneficiaries. Should his estate undergo probate, a conservative estimate suggests that 5% of the estate’s value could be consumed by fees—potentially $85,000. Additionally, probate can freeze assets, leaving no accessible funds to cover ongoing expenses like mortgages and taxes, leading to potential foreclosure or tax sales. Families may face even greater hardships if there’s property in multiple states, which can lead to multiple probates.
People may resist planning due to misconceptions. For instance, they think that estate planning is only for the wealthy, or they assume a spouse will inherit everything—a dangerous assumption, especially in blended families. Some may feel they can’t afford an attorney’s help, but the cost of navigating the state’s default probate process can be significantly higher both financially and emotionally.
Having a will and naming your children as beneficiaries on a life insurance policy is a start, but it’s not comprehensive. Wills don’t control all assets, don’t avoid probate, and fail to cater to specific situations like minor children inheriting assets, which can’t legally occur until they reach adulthood.
In contrast, a trust offers myriad advantages: privacy, safeguards for minors and blended families, incapacity planning, and more efficient administration. By providing clear guidance and instructions, a trust can help prevent family conflicts and is generally more cost-effective long-term.
Having shed light on these key points, let’s continue to the next area of discussion in asset protection and estate planning.
The next step in asset protection involves putting your real estate property into a limited liability company, or LLC. This provides you with an additional layer of security beyond personal insurance and estate planning. It’s great to see some participants, like Jenna, Alex, and Greg, already considering or using this strategy.
LLCs are particularly well-suited for holding real estate as they can be managed by a single individual and don’t require the extensive upkeep associated with corporations. When you place your property into an LLC, you’re creating a formal business entity that legally owns the property, which helps to separate your personal assets from your investment, reducing personal liability in the event of a lawsuit against the property.
It’s also important to then assign the interests of your LLC into your trust, integrating it into your broader es tate planning structure. This not only offers the asset protection benefits of an LLC but also incorporates the advantages of a trust, which can be pivotal in effective estate management and avoidance of probate.
For those of you managing an LLC, it’s vital to observe the necessary formalities, such as maintaining a separate bank account for the LLC, ensuring accurate bookkeeping, and proper tax filings. Work with a CPA or a tax professional who can provide you with guidance on these matters.
One critical piece of advice is to avoid commingling funds; do not collect rent or other business-related income in your personal account only to transfer it to your business account later. This practice could potentially allow a creditor to “pierce the corporate veil,” meaning they could hold you personally liable for business debts or claims, negating the protective separation the LLC is meant to provide.
In summary, forming and properly maintaining an LLC for your real estate assets can substantially enhance your level of asset protection and work in conjunction with your trust to create a strong, integrated safeguard for your properties.
Apologies for the oversight. Here is the information with more detail and in Kendra’s voice, as requested:
Kendra Strong-Tehrani:
Moving on to advanced asset protection strategies. The next level involves placing your real estate LLCs under the umbrella of a Wyoming LLC. Now, I want to clarify that achieving all five levels of asset protection isn’t necessary for everyone. Right now, even I don’t operate at level four. This level is particularly relevant if you have joint ownership with non-family members, such as business partners, or if you hold numerous properties across different states.
The reason Wyoming stands out is due to its low filing fees, strong protection laws, and tax benefits, making it a popular choice for asset protection. It’s especially favorable for real estate investors as opposed to large corporations, which might lean towards states like Delaware. If you’re considering this approach, it’s important to work with attorneys specialized in Wyoming law.
Let me emphasize: levels four and five involve advanced planning. These levels typically require working with a team of professionals, including CPAs, to address state-specific reporting and filing requirements. Now, specifically at level four, you’d create a Wyoming holding company to hold your individual state LLCs, adding another layer of protection and making it harder for potential lawsuits to reach your personal assets. Wyoming is notably anti-creditor, offering strong shields, such as double charging order protection that most states don’t provide.
Then we get to level five, which is highly advanced planning—something that involves additional layers, such as owning the Wyoming LLC in a Delaware or Nevada asset protection trust. These are irrevocable trusts, and setting them up relinquishes some control over your assets for the sake of protection. This level is generally for those with a large amount of assets and typically requires the insight of a financial advisor. It’s aligned with strategies to maximize federal tax exemptions, which are subject to change in the coming years.
If you’re just managing a handful of properties, say two to ten, levels one through three should suffice. But as you expand your portfolio, you may want to look into these more advanced strategies. Remember though, a personalized approach is key. Consult with an attorney in your state of residence to determine the best course of action for your particular situation.
For those living in Colorado, feel free to contact me for a discovery call, where we can dive into the specifics of your properties, family situation, and your goals for protection and inheritance. For those outside Colorado, I can help by providing referrals through my extensive network of over 600 estate planning attorneys across the country—professionals who can support your needs, including those advanced strategies if necessary.
Yes, you’re able to transfer properties into an LLC. My advice on this matter is to have a conversation with your mortgage lender beforehand. There are often clauses within mortgage agreements, known as “due-on-sale” clauses, that could technically be triggered by such transfers. However, if you clearly explain to them that the transfer of the property into an LLC is purely for asset protection and insurance purposes, not an actual sale, they often understand.
I’ve never encountered a situation where an insurance company has pursued any of my clients for transferring property into an LLC, demanding immediate payment of the remaining mortgage balance. Remember to explain that it is still under your control—it’s asset protection, not a sale to a third party.
It’s also worth noting that your primary residence usually has additional protections, making it distinct from investment properties when considering transferring it into an LLC. Always ensure proper communication with your mortgage holder to avoid any unnecessary complications.
No, you don’t need a separate EIN for each property within your LLCs. This is an excellent question for your CPA, as it can depend on how you choose to organize your business structure. If you plan on having separate bank accounts for each LLC, generally, you would need a different EIN for each one. However, there are various strategies in which you might not require an individual EIN for each property.
For example, some investors utilize a holding company structure. In this setup, a single holding company might control several LLCs, which allows for consolidated management and potentially fewer EINs. Others may employ a property management company, which could simplify financial operations under a single entity, thus reducing the need for multiple EINs.
Keep in mind that each approach comes with its own tax and filing considerations. Having separate EINs for each LLC could result in more tax filings and paperwork. It’s important to weigh the administrative duties against the asset protection benefits when making this decision and to consider the implications with professional advice from a CPA.
It’s a common concern to think you might have to refinance at a higher interest rate when transferring rental properties into an LLC, but from my experience, that’s not necessarily the case. I’ve not seen any of my clients required to refinance their mortgage simply because they’ve moved their rental properties into an LLC.
It’s important to communicate with your mortgage lender and explain what you’re planning to do. The conversation should clarify that you’re not selling the property but transferring the property title into the LLC for asset protection purposes. Your name remains on the mortgage; the transfer impacts the title, not the loan itself.
Another important point is to ensure your LLC is properly covered by your insurance. When you assign your property to an LLC, update your insurance policy to reflect this change, listing the LLC to maintain coverage under the new entity structure. This attention to detail helps prevent potential issues and ensures your assets are fully protected under the LLC.
That’s a perfect question because that’s exactly the point we’re discussing. If you own multiple properties, my recommendation is to have each one in separate LLCs. The reason for this is to provide the maximum protection possible; it’s about safeguarding each individual property.
Consider if something goes wrong with one property, for example. If it’s all under one LLC and you face a lawsuit, all the properties in that single LLC could be at risk, potentially leading to far greater losses. By having separate LLCs for each property—property A in one LLC, property B in another, and so on—you contain the risk to just that one property involved in the lawsuit. Properties B and C remain protected in this scenario.
It’s also a simplifying strategy for management. In my own portfolio, each rental property is held in its own LLC, often named after the street it’s on, like Greenwood LLC. This makes it easier to track and manage. Additionally, I use a property management company that operates separately from these LLCs. The LLCs own the properties, while the management company runs the daily activities.
So in summary, when we talk about LLCs and trusts for each property, we’re really talking about creating the strongest safety net for your investments.
Determining what constitutes good insurance really does depend on several factors, including the specific assets you own. Should a significant event occur, you want to ensure that your coverage is adequate. To understand the full scope of potential risks, like slip and fall incidents on your property, it’s crucial to have a detailed discussion with your insurance agent or broker. They can provide valuable insights on the types of scenarios you should be prepared for and the amount of coverage that would be appropriate.
I advise against only carrying the state minimum for insurance; it’s typically not sufficient. A good starting point would be a policy with at least $100,000 in coverage. However, depending on the value of your assets and various risk factors, you may find that you need more than this amount. The right balance is key—it’s about having enough insurance to protect yourself adequately, but not so much that it becomes unnecessarily expensive.
Each property being in its own LLC is definitely the ideal approach for maximum protection. The reason is, if you have multiple properties under one LLC and one property is involved in a lawsuit, all the properties in that LLC could potentially be implicated, which puts you at greater risk. So, for each of your rental properties, having them sequestered in their own individual LLC is a strategy I strongly recommend.
When it comes to properties across different states, it’s wise to have them under separate LLCs for each state. This not only simplifies management but also ties in seamlessly with your estate planning; it allows any property to be part of your revocable living trust. With this arrangement, should something happen to you, the trustee of your trust can manage those properties without the need to go through the probate process in each separate state, which can be very time-consuming and costly. It’s all about creating an efficient, protective structure that helps manage your assets effectively now and in the future.
With a revocable living trust, it’s an arrangement that you can change at any time during your life. You, as the grantor, set up the trust, and you can also be the trustee, which means you manage the trust’s assets, and you can be the beneficiary during your lifetime. The flexibility to alter or revoke the trust is a significant advantage for many people because your circumstances and wishes may change over time.
In contrast, an irrevocable trust is exactly what it sounds like—it cannot be changed or revoked after it’s been established. When you place assets into an irrevocable trust, you effectively relinquish your control over them. One of the primary reasons for setting up an irrevocable trust is for estate tax benefits; the assets in the trust are no longer considered part of your personal estate for tax purposes. However, this permanent nature means you lose control and the ability to easily make changes, which can be a limitation, particularly if you’re dealing with assets like real estate that you might want to leverage or adjust in the future. It’s a less flexible setup, but it has particular uses, especially for estate tax planning.
That’s right. Even when you have a revocable living trust in place, you still need a will. The trust and the will serve complementary but distinct roles in your estate plan. The revocable living trust handles the distribution of the assets it holds, but there may be assets that haven’t been transferred into the trust or that you acquire later. A will can catch these outside assets and specify where they should go.
If your goal is to avoid the probate process as much as possible, a revocable living trust can be a powerful tool because the assets within it pass directly to your beneficiaries without the need for probate. However, a will is still necessary as a safety net for any assets not included in the trust and to carry out other important functions, such as naming guardians for your minor children. So, the trust does a lot of the work, but the will is there to cover anything that might have been missed and offer a complete plan for your estate.
Yes, it’s definitely possible to create a revocable living trust on your own, as there are online services that can help you with that. However, I would caution against doing it completely by yourself if your situation has any level of complexity. For instance, if you have a blended family or properties in multiple states, or if there are any other unique circumstances, it’s really important to get professional help.
The fact is, estate planning can get quite intricate, and the stakes are too high to leave it to chance or to a one-size-fits-all solution. A professional can provide personalized advice and ensure that your trust is set up correctly, reflecting your specific wishes and covering all the legal bases. Remember, the goal is not just to create a trust but to create one that effectively accomplishes what you set out to do without creating problems down the road.
Yes, that’s correct—the costs I’ve stated for setting up a revocable living trust typically account for the entire upfront process. This usually includes the preparation and execution of the trust documents themselves. It’s worth noting, though, that this fee should cover everything needed to establish the trust properly at the outset. However, if you need to make alterations or add assets later, there could be additional fees associated with those changes. When engaging with an estate planning attorney, it’s a good idea to discuss fully what the initial costs cover to avoid any surprises down the road.
The necessity of having a revocable trust, even if you possess LLCs, is quite straightforward—the concern is about who will manage your LLCs if you pass away or can’t manage them owing to incapacity. Without a clear plan in place, like one established by a trust, your LLCs and the assets within them could very well end up going through the probate process.
This is the very situation we’re trying to avoid by establishing a revocable trust. The trust steps in to provide direction about what should happen with the LLCs and your assets, laying out who will take over management and avoiding the potential of probate. It’s about ensuring that your estate plan covers all bases, allowing your assets to be handled per your wishes without unnecessary legal hurdles or delays.
The step-up in basis, which refers to the readjustment of the value of an asset for tax purposes upon inheritance, applies equally to heirs whether they inherit through a will or a trust—so there’s no disadvantage in that aspect. While an irrevocable trust does have different tax implications that might not be as advantageous for smaller estates, revocable trusts, when properly structured, still offer the step-up in basis benefit.
In my experience with clients, transferring property to an LLC without informing the mortgage company has not typically been problematic, as long as the mortgage company is receiving their payments. Nevertheless, it is more cautious and advisable to inform the company about the transfer.
Yes, you can envision setting up an individual LLC for each property, with one trust that acts as the overarching structure. Picture the trust as the roof, with all your LLCs sheltered beneath it. Each LLC is housed in this single space but remains distinct and separate within that overarching framework.
Yes, my husband and I are both owners of our real estate LLCs. We hold our LLCs jointly, which means if one of us passes away, the surviving spouse will have 100% ownership. That’s the arrangement we’ve chosen. Following the passing of the surviving spouse, our trust outlines what will happen with our property and how it will be divided, including the specific proportions allocated to each of our three children.
No, placing property into an LLC does not prevent taxes from rising as the property values increase. Real estate taxes can still rise regardless of the property being held in an LLC.
Our personal residence, where we live, is owned by my trust, not an LLC. This is because I am not renting the house to myself, and there’s no need to go through those formalities. You certainly could put your own house into an LLC, but in many cases, it might be overkill. It depends on what your purpose is. Typically, it’s not necessary unless you start renting out that property.
There are two options for converting a property from personal ownership to an LLC. You could start by doing it yourself, which involves going to your Secretary of State’s website to check the requirements for filing an LLC, and then obtaining and filing a deed in the name of the LLC. This is a straightforward, DIY approach.
Alternatively, your starting point should be to consult with an estate planning attorney to discuss your overall goals for the property and to understand how you want it to be managed. This can provide a more comprehensive strategy that aligns with your long-term objectives.
As we’ve mentioned and as shown on the screen, you can reach out to Kendra for her services, whether you’re a resident of Colorado or if you’re outside Colorado and looking for someone with her expertise. She has the connections to help you, so feel free to email her.
Please reach out to Kendra for a 15-minute discovery call if you’re in Colorado, or for assistance in connecting with a professional who can facilitate your estate planning if you’re out of state.
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