on April
11th, 2016
Many New Yorkers who want to
move to Florida still desire to retain a home, an apartment, or some other type
of property in the place where they grew up. What many of the newly
minted Florida residents may not consider are the estate tax consequences of
continuing to own property located in New York. In light of the changes
to New York’s estate tax laws in the past two years, we set forth some
important rules that the old New Yorker / new Floridian should keep in mind.
A primer on New York estate
tax law is helpful before considering the issues associated with being a
Florida resident who owns property located in New York. New York imposes
an estate tax at rates ranging from 4% to 16% on its residents (and also
nonresidents, as will be explained below). However, New York law also
provides that anyone owning less than $4,187,500 in assets is exempt from New
York estate tax. This exemption increases to $5,250,000 on April 1, 2017
and finally increases again on January 1, 2019 to equal the federal exemption
(which is currently $5,450,000 as adjusted for inflation).
Therefore,
if an individual’s total estate is
less than the New York exemption amount, that individual need not be concerned
with New York estate tax. In addition, if the total value of a Florida
resident’s New York assets is under the New York exemption, that individual
also need not be concerned with New York estate tax. But, what if a
Florida resident’s New York assets are valued over the New York exemption?
New York’s
estate tax applies to nonresidents owning real or tangible personal property located in New
York. It does not apply to intangible property owned by Florida
residents. Tangible personal property is defined in the negative, meaning
New York law sets forth assets that are considered intangible, and therefore
not subject to New York estate tax, including bank deposits, shares of stock,
bonds, mortgages, debts and receivables. Tangible personal property
includes assets that (i) are movable, (ii) have physical characteristics,
and (iii) are capable of being possessed – boats, cars, artwork, jewelry,
antiques and other collectibles.
New York’s estate tax also
applies to any gifts made within three years of an individual’s death.
For the individual who has recently moved to Florida, this means that the value
of any gifts by that individual while he or she was a New York resident of real
or tangible property located in New York or intangible personal property
relating to an active business, trade or profession in New York will be
considered for determining whether the Florida resident is subject to New York
estate tax. This three year add-back only applies to gifts made after
April 1, 2014. The rule will not apply to estates of individuals who die
after January 1, 2019.
To illustrate how New York
estate tax law operates, take for example a Florida resident who owns a
vacation home in the Hamptons valued at $6,000,000. That individual would be
subject to New York estate tax because the value of the home ($6,000,000) is
greater than the current New York exemption ($4,187,500). Also note that,
unlike federal estate tax law, once an individual’s estate exceeds the New York
exemption, the value of the individual’s entire estate is subject to New York
estate tax, not just the amount over and above the New York exemption.
Therefore, in our example, the entire $6,000,000 would be subject to New York
estate tax (not just $1,812,500).
What if that same Florida
resident instead owns a cooperative apartment in New York City and does not own
the Hamptons home? That Florida resident would not be subject to New York
estate tax because that individual owns shares in the cooperative apartment,
which is considered an intangible asset.
Now assume that the Hamptons
home is valued at $1 million and the rest of the Florida resident’s assets,
which are all located in Florida, are valued at $5 million. Then the
Florida resident would not be subject to New York estate tax because the $1
million Hamptons home is less than the current New York exemption of
$4,187,500. It is irrelevant that his or her total estate is greater than
the New York exemption.
So how does the Florida
resident avoid New York estate taxation on his or her $6,000,000 Hamptons
vacation home? One option is forming a special residence trust and then
gifting the property to that trust. This removes the property from the
individual’s taxable estate. There are advantages and disadvantages to
this option, which are not discussed in this blog post.
Another option is to place the
home in a Limited Liability Company. By placing the home in a LLC, the
interest in the home converts to an intangible asset, which is not subject to
New York estate tax (so long as the LLC is not carrying on an active NY
business). The potential savings from transferring the $6 million
Hamptons home to the LLC? A few hundred thousand dollars ($510,800 to be
exact). One caveat to transferring the home to a LLC is that the LLC
should be a multi-member LLC, as New York takes the position that if a LLC is
disregarded for federal tax purposes (i.e., it only has one member), then it
will be disregarded for New York estate tax purposes in determining whether the
property is intangible or not. This is based on a decision made by the
NYS Department of Taxation and Finance in May 2015.
If there is valuable artwork
or other collectibles in that home, then the Florida resident may want to
consider moving that property to Florida, gifting that property, or
transferring those assets to the LLC. He or she could also lend that art
to a museum or public gallery in New York for exhibition. All of these
options would remove the property from the New York taxable estate.
Also important in determining
whether a Florida resident will be subject to New York estate tax are the
deductions allowable for New York estate tax purposes. In determining
what expenses are deductible in order to determine the value of a Florida
resident’s New York estate, any deductions directly related to (i) real and
tangible property located outside New York and (ii) intangible property are
disallowed.
For example, property taxes on a New York home would be
deductible, but property taxes on a Florida home would not be deductible.
Funeral expenses, Executor’s commissions, and other federal deductions that are
not directly related to real or tangible property located outside New York or
to intangible property would be partially deductible based on a percentage
equal to the value of property outside of New York compared to the total value
of the estate.
After moving to
Florida, make sure you know the value and quality of the assets you are
leaving behind in New York. If it is determined that those assets are real or
tangible assets and their value exceeds the New York exemption amount, then
plan accordingly to move those assets outside of New York, gift those assets,
or convert the assets to intangible assets. The savings could amount to
hundreds of thousands of dollars for your family.
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