Real estate is often one of the more significant parts of an estate. Whether the property is a single-family home, a condo, or a co-op (cooperative), it needs to be addressed in the estate plan. A recent article from Habitat, “Trust Transfers in Co-ops: Balancing Estate Planning and Building Interests,” explains how co-op boards view these transfers, providing useful insight for those considering putting real estate property into a trust.
The board will watch how maintenance payments are handled once the transfer occurs. In a co-op, you don’t own the apartment or townhouse. You instead own shares in the building. When individual shareholders fail to stay current on maintenance payments, the board has a straightforward path to dealing with the issue of non-payment. It can pursue the shareholder’s personal assets or foreclose on the shares.
When a trust owns the co-op, the board has less control over who lives in the unit, so recovery is unclear. The question of the voting rights for a trust versus an individual also has to be clarified. If three siblings now own the co-op through a trust, who has the right to vote in a shareholder meeting? Someone must be designated to participate in the board’s annual meeting and vote on the trust’s shares to maintain quorum requirements.
Determining who pays the co-ops’ legal fees to review the trust request is another issue the board will address. When the owner is an individual, the transfer cost falls on the shareholder making the request, not the building. This occurs with current shareholders who seek to transfer their shares into a trust and new purchasers who want to buy into a unit owned by a trust.
When faced with a request to transfer a unit into a trust, the board also considers whether or not it will permit heirs to automatically be allowed to live in the co-op. Most co-ops have rigorous review processes to protect the financial well-being of the building. Beneficiaries should not expect to move in without going through the same approval process as any new purchaser, whether they plan to live in the unit themselves or if they are going to sell the unit to someone else.
Condominiums are owned differently, so the transfer process will be different than for a co-op. Most condos don’t give their boards as much control as in a co-op. Some condos try to impose similar restrictions when a property is transferred to a trust. However, they don’t typically have the right to do this. A local estate planning attorney should be consulted to review the condo bylaws before moving the property into a trust.
Understand the condo may not have the legal right to prevent a property from being transferred into a trust. However, they might make life uncomfortable for beneficiaries trying to move into a unit or trying to sell the unit. An experienced estate planning attorney should be involved with the transaction before the trust is created and executed.
Another issue to be considered concerns an existing mortgage. Transferring co-op shares into a trust includes surrendering the current stock certificate and lease. To do so, the lender has to approve this process. A new stock certificate is then issued to the trustee on behalf of the trust. There may be tax implications, as units owned by a trust might not qualify for any co-op/condo tax abatement, which could impact the overall estate plan.
This trend appears to be growing, and while some boards may initially refuse the request, many now understand that trust transfers can facilitate the shareholder’s estate plan, while maintaining the building’s best interests.
Reference: Habitat (December 2024) “Trust Transfers in Co-ops: Balancing Estate Planning and Building Interests”