On the sale of the estate's assets
Estate property can be sold before the distribution of the estate for a number of reasons. Sometimes the sale of assets is necessary in practice to provide the estate with ”liquid assets” to pay the debts of the deceased or the estate. The payment of debts is important because the distribution of the estate cannot be started until the debts have been paid. A typical situation is one in which the estate has assets of monetary value, but little in the way of cash. On the other hand, estate assets are often sold for the simple reason that the partners in the estate prefer to receive cash in the distribution of the estate rather than, for example, an interest in a particular asset such as a property.
Sale of estate assets requires unanimity
Unless otherwise agreed between the partners of the estate or a court order has appointed a liquidator and a distributor, the estate is administered jointly by its partners. The joint administration of the estate implies that all actions concerning the estate are taken jointly and unanimously by all the partners. Consequently the sale of assets of the estate requires the consent of all the partners in the estate, no matter how minor the transaction may appear to be.
In most cases, joint management does not pose major problems and in estates where there are good relations between the partners, there is flexibility to agree things orally, for example. In order to avoid possible ambiguities, and particularly in estates where disputes are likely to arise in connection with the settlement and distribution of the estate, it is also important to agree on matters relating to the sale of the estate's assets as unambiguously as possible. The legal protection of all the partners in the estate is enhanced when there are no ambiguities. Anticipation is the best way to avoid hindsight.
Sale of estate property and renunciation of inheritance
If a partner in the estate intends to renounce the inheritance, for example for the benefit of his or her children, the person renouncing the inheritance should refrain from any seemingly trivial dispositions concerning the estate's assets. Participation in a sale is considered to be an act of inheritance, which means that it may no longer be possible to renounce the estate without incurring inheritance tax consequences.
Sale of estate assets and asset forfeiture
When an estate sells movable assets, such as vehicles or household furniture, it is often the case that the assets are sold at a loss. In the case of the sale of real estate or residential property, on the other hand about the capital gains may come up.
If the dwelling or property is sold before the estate is divided, any capital gains penalties will be imposed on the estate instead of the shareholders. Under our tax legislation, the estate is taxed as an independent taxpayer. Sometimes the situations for transfer tax purposes are simple. The main rules are that when calculating the capital gain - or alternatively the capital loss - the acquisition cost of an asset is the taxable value of the asset as determined for inheritance tax purposes. A capital gain is obtained by deducting from the purchase price of an asset - such as a dwelling or real estate - the taxable value of that asset plus the costs of the sale, such as the brokerage commission, and subtracting the taxable value for inheritance tax purposes. Alternatively, the cost assumption may be used if it is more advantageous.
Sale and distribution of estate assets
Sometimes situations can be more challenging. In a situation where both spouses are deceased and their undivided estates own residential property or real estate, it may be appropriate to make a division between the spouses before the sale of the property, so that as much of the property or residential property as possible is transferred as a settlement to the estate with the higher taxable value of the property. Careful distribution can lead to very significant savings in capital gains tax. In such situations, we recommend that you consult an expert.
Finally
An undivided estate can sell assets, and in many cases the sale of assets is necessary to enable the distribution of the estate. However, there are a number of issues involved in the sale of assets in an estate which should be clarified in advance to avoid future disputes and ensure smooth administration of the estate.
Article written by lawyer Santeri Valkamo. You can always call him free of charge, p. 010 299 5090.
This article is part of our series of articles on family and succession law. You may also be interested in the following articles:
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Before distributing the inheritance, a distribution must be made
Why must a deed of distribution be drawn up?