Voiding Probate with Georgia’s New Transfer on Death Deed—But Do You Still Need a Trust?

Questions about capital gains come up often in Estate Planning. Clients want to know: “If I pass my property to my children, will they have to pay capital gains tax?” It’s an important question, and the answer depends entirely on how and when that transfer happens. Understanding these distinctions can make a significant financial difference for your family. When Assets Gain Value, So Do Tax Considerations A Capital Gain is the profit realized when an asset, a home, land, or investment, is sold for more than its original purchase price. If you bought a property for $100,000 and sell it years later for $250,000, the $150,000 difference is your gain, and it’s taxable. That’s the basic version. But when the property isn’t sold, when it’s gifted or inherited , things work differently. Gifting During Life vs. Transferring at Death If you gift property during your lifetime , the person receiving it also inherits your original cost basis . That means when they sell it, they’ll owe taxes on any increase in value that occurred both before and after you gave it to them. For instance, if you purchased the property for $100,000 and it’s now worth $250,000, your recipient could face capital gains taxes on that $150,000 increase when they decide to sell. However, if that same property is transferred through your estate or a trust , the rules change in a way that often benefits your heirs. The Step-Up in Basis: A Powerful Adjustment When an asset passes through an Estate after the owner’s death, the tax basis , the value used to calculate gain or loss, is “stepped up” to the fair market value at the time of death. This reset can significantly reduce or even eliminate capital gains tax for your heirs. Let’s return to our example: If your property is worth $250,000 at the time of your passing, your heirs inherit it at that value. If they later sell it for $260,000, their taxable gain is only $10,000, not the $150,000 that accrued during your lifetime. This “step-up” is one of the most important yet least understood advantages in Estate Planning. Federal vs. Georgia Capital Gains 1. At the Federal Level The federal government taxes capital gains, that is, the profit you make when you sell an asset like a home or stock for more than what you paid. But not all gains are treated the same way: If you owned the asset for less than one year , the gain is considered ordinary income , taxed just like your salary. If you owned it for more than a year , it’s a long-term capital gain , which qualifies for a lower tax rate (0%, 15%, or 20%, depending on your income). Now, here’s where it gets interesting: when someone inherits a property, the law provides a step-up in basis . This means the property’s value is “reset” to its fair market value at the time it’s inherited. So if the heir sells the property shortly after, they’ll likely owe little or no federal capital gains tax , because the taxable gain, the difference between the inherited value and the sale price, is small. How Georgia Differs Here’s where things differ. Georgia doesn’t have a special “Capital Gains Tax.”Instead, it treats any capital gain as ordinary income under the state tax system, applying its standard income tax rate (up to about 5.49% ). That means that even if the federal step-up in basis reduces or eliminates federal tax liability, Georgia may still collect state income tax on any increase in value that happens between the time you inherit and the time you sell the property. What It Means for Estate Planning Coordinating your estate strategy involves considering both federal and state laws. While the step-up in basis is one of the most effective tools available to families, Georgia’s tax treatment can still affect how much your heirs ultimately retain. A well-structured plan ensures your estate benefits from the federal step-up while also minimizing any state-level exposure. Why This Matters Most families simply want to pass down what they’ve worked for without creating new financial stress for the next generation. But generous intentions can sometimes lead to unintended tax consequences. The good news is that with proper Estate Planning, these issues can be anticipated and managed. Timing matters, and so does understanding how different laws interact. Let’s Talk About Your Plan Estate and Tax Planning are deeply personal. Every family’s financial picture, values, and goals are unique.  If you’d like to understand how the step-up in basis or capital gains rules could affect your estate, the team at McGinn Law is ready to help, with the same clarity, care, and efficiency that define our approach to client service.

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