What is the trust capital gains loophole in real estate?
Asked by: Elenora Beer | Last update: February 16, 2026Score: 4.8/5 (25 votes)
The "trust capital gains loophole" in real estate primarily refers to the stepped-up basis rule, where inherited property gets a new tax basis at its fair market value when the owner dies, drastically reducing or eliminating capital gains tax for heirs who sell it quickly. Other related strategies include using Charitable Remainder Trusts (CRTs) to sell appreciated property tax-free and reinvest, or setting up trusts like an Intentionally Defective Grantor Trust (IDGT) for complex wealth transfer, but the stepped-up basis is the most commonly discussed "loophole" for heirs.
How to use a trust to avoid capital gains tax?
You can avoid or reduce capital gains tax with trusts, primarily through Charitable Remainder Trusts (CRTs) (selling appreciated assets tax-free for income/charity), the stepped-up basis at death (for inherited assets from a revocable trust/estate), or using specific irrevocable trusts designed to hold assets to minimize tax on sales within the trust. The key is careful planning, often involving irrevocable structures or charitable giving, as standard revocable trusts don't avoid the tax until death for beneficiaries.
What is the trust capital gains loophole?
The trust fund loophole refers to the “stepped-up basis rule” in U.S. tax law. The rule is a tax exemption that lets you use a trust to transfer appreciated assets to the trust's beneficiaries without paying the capital gains tax. Your “basis” in an asset is the price you paid for the asset.
What is the 7 year rule for trusts?
If you die within 7 years of making a transfer into a trust your estate will have to pay Inheritance Tax at the full amount of 40%. This is instead of the reduced amount of 20% which is payable when the payment is made during your lifetime.
Do trusts get 50% CGT discount?
One of the tax advantages of a family trust is related to capital gains tax (CGT). Namely, the 50% CGT discount if the assets are held for longer than 12 months. This discount effectively halves the taxable capital gain, potentially resulting in significant tax savings.
The Real Estate Tax Loophole You Need To Know!
What is the 5% rule for trusts?
The 5 by 5 rule allows a beneficiary of a trust to withdraw up to $5,000 or 5% of the trust's total value per year, whichever amount is greater. This withdrawal can occur without the amount being considered a taxable distribution or inclusion in the beneficiary's estate, which can have significant tax advantages.
What is the 7 year capital gains tax exemption?
7-Year Capital Gains Tax Exemption
If you dispose of land or buildings bought between 7 December 2011 and 31 December 2014, and held them for at least 4 years, you may be eligible for partial or full relief: Held for more than 7 years: No CGT for the first 7 years of ownership.
What is the best trust to avoid estate taxes?
The best trusts to avoid inheritance tax are generally irrevocable trusts, like Irrevocable Life Insurance Trusts (ILITs), Generation Skipping Trusts (GSTs), or Credit Shelter Trusts, because they remove assets from your taxable estate, while options like Bypass Trusts help married couples use exemptions, and Family Limited Partnerships (FLPs) can reduce asset values, but all require giving up control and professional advice is crucial.
Is the ATO cracking down on family trusts?
The crackdown has resulted in the ATO undertaking extensive audits of family trusts and historical distributions, and the issue of hefty Family Trust Distributions Tax (FTD Tax) assessments for noncompliance – being a 47% tax (plus Medicare levy) along with General Interest Charges (GIC) on any historical liabilities.
What are the benefits of putting your house in a trust?
Putting a house in a trust helps avoid the lengthy, costly, and public probate process, allowing for faster, private transfer to heirs, while also offering asset protection, incapacity planning, and potential tax benefits, letting you control distribution and shield assets from creditors or family disputes. Key benefits include bypassing probate court, maintaining privacy, planning for future incapacity, and setting specific conditions for inheritance.
How much capital gains do I pay on $100,000?
On a $100,000 capital gain, you'll likely pay 15% for long-term gains (held over a year) if you're in a typical income bracket, totaling $15,000; however, if it's a short-term gain (held a year or less), it's taxed as regular income, potentially 22% or higher, making it $22,000 or more, depending on your total income and filing status. The exact tax depends heavily on your filing status (Single, Married Filing Jointly) and other taxable income.
How to get 0% tax on capital gains?
Capital gains tax rates
A capital gains rate of 0% applies if your taxable income is less than or equal to: $48,350 for single and married filing separately; $96,700 for married filing jointly and qualifying surviving spouse; and. $64,750 for head of household.
Does a trust pay capital gains on the sale of a house?
Because the trust is not treated as a separate taxpayer, all income, including capital gains, is reported on the Settlor's individual tax return. This means that if real estate held in a revocable trust is sold and a profit is realized, the resulting gain is taxed to the Settlor personally.
Why shouldn't I put my house in a trust?
A: Among the disadvantages of putting your house in a trust in California is the cost associated with creating the trust. Additionally, if the trust in which you put your house is an irrevocable trust, you lose a certain level of control because the terms of the trust cannot be changed in most cases.
What is a simple trick for avoiding capital gains tax?
A simple trick to avoid capital gains tax is to hold investments for over a year to qualify for lower long-term rates, or even better, donate appreciated assets to charity, which lets you avoid tax on the gain and potentially get a deduction, or use tax-advantaged accounts like a 401(k) to defer taxes until withdrawal. Other methods include offsetting gains with losses (tax-loss harvesting), using Opportunity Zones, or gifting appreciated assets to beneficiaries in lower tax brackets.
Who pays taxes on capital gains in a trust?
Capital gains are not considered income to such an irrevocable trust. Instead, any capital gains are treated as contributions to principal. Therefore, when a trust sells an asset and realizes a gain, and the gain is not distributed to beneficiaries, the trust pays capital gains taxes.
How to avoid capital gains tax with a trust?
You can avoid or reduce capital gains tax with trusts, primarily through Charitable Remainder Trusts (CRTs) (selling appreciated assets tax-free for income/charity), the stepped-up basis at death (for inherited assets from a revocable trust/estate), or using specific irrevocable trusts designed to hold assets to minimize tax on sales within the trust. The key is careful planning, often involving irrevocable structures or charitable giving, as standard revocable trusts don't avoid the tax until death for beneficiaries.
Which trusts are exempt from inheritance tax?
Bare trusts
Transfers into a bare trust may also be exempt from Inheritance Tax, as long as the person making the transfer survives for 7 years after making the transfer.
How do the rich use trusts to avoid taxes?
Transferring assets to a trust is a smart way to reduce estate taxes. This process can help you manage how your wealth is passed on after you're gone. Pick the right type of trust for your goals. You might use an irrevocable trust or a revocable living trust, depending on what you want to do with your money.
How to avoid taxes by transferring real estate in a trust?
California Laws and Property Taxes
However, California provides an exclusion for transfers of real property into a revocable living trust. As long as you are the creator of the trust and the primary beneficiary during your lifetime, the transfer will not trigger a property tax reassessment.
What is the loophole for inheritance tax?
The most significant "inheritance tax loophole" in the U.S. is the stepped-up basis, a legal provision allowing heirs to inherit appreciated assets (like stocks or real estate) at their fair market value at the time of death, effectively wiping out the original owner's capital gains tax liability on that appreciation. Other strategies, often used by the wealthy, involve trusts like GRATs (Grantor Retained Annuity Trusts) to transfer wealth tax-free, and gifting assets during life to reduce estate size. While many assets aren't subject to income tax upon inheritance (except pre-tax retirement funds), the stepped-up basis prevents capital gains tax on unrealized gains, a point of ongoing debate.
What is the downside of having a trust?
Disadvantages of a trust include high setup and maintenance costs, complexity in administration, loss of direct control over assets, time-consuming funding processes, potential for trustee mismanagement, and limited creditor protection for revocable trusts, often requiring professional fees and meticulous record-keeping. They can also create inconveniences for beneficiaries and may not suit simple estate plans or small asset values, where costs might outweigh benefits.
What is the new lifetime capital gains exemption?
Under proposed changes, the lifetime capital gains exemption (LCGE) limit for qualified small business corporation shares and qualified farm or fishing property will increase to $1.25 million for dispositions that occur after June 24, 2024. Annual indexation for the $1,250,000 lifetime limit will resume in 2026.
At what age does capital gains tax stop?
In the past, the Internal Revenue Service offered special capital gains exemptions for homeowners age 55 and older, but that rule was eliminated in 1997 and replaced with a broader exclusion available to most homeowners. As of 2025, age-based tax advantages largely apply only within retirement accounts.
Do you pay capital gains tax on inherited property?
In summary: You don't pay CGT when you inherit a property (although you may have to pay Inheritance Tax) You may need to pay CGT if you later sell or gift the property and it has risen in value. Your CGT bill depends on the probate value, sale price, allowable costs and available reliefs.