I've seen questions and answers regarding non-US citizens but this is a question where all parties are US citizens.
I am an unmarried non-resident US citizen living outside the US. As part of my estate planning, I am considering gifting my overseas residence to my US citizen son who resides in the US, and retaining a life estate.
It doesn't look like any IRS reporting needs to be done other than a gift tax return. I'm familiar with cost basis rules for property in the US so I'm only asking about what rules and reporting would be different given that the property is in a foreign country.
Thank you!
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Yes, if this is a gift of a future interest, you will need to file a Gift Tax return since this is part of a Life Estate granting you certain rights to the property during your lifetime.
Your son will need to file a Form 3520 if the residence is worth more than $100,000. Please read the link I have included below regarding instructions for Form 3520.
Every publication I've seen has been SPECIFIC of what is required IF the DONOR is a "NON-CITIZEN non-resident of the US". In my case, the DONOR is a US citizen. While Gift Tax Return (Form 709) will definitely be required, but I do not believe that Form 3520 is required as the donor is a US CITIZEN.
Since the property is located overseas, if it is given via the estate, then the Form 3520 is required. If it is given as a gift (rather than passed along through the will), then only Form 709 is required.
This one is a bit of a different situation but the key here is that the 3520 is required for a gift from a foreign person or a foreign estate, which comes into play if the property is willed to your son. This is because there is then a foreign entity (the estate) involved in the process.
If you give the property and keep a life estate, I don't think a 3520 is needed now. But your son will probably need to file one in the future. However, the intent of the form is really to capture assets that weren't subject to Form 709 filing - so it's kind of a duplication of efforts if you've already filed (or will file) Form 709 to report the asset transfer.
The one nice thing about Form 3520 is that it doesn't involve any tax or the use of any gift or estate tax unified credits - it is merely a reporting form. It is also a bit intimidating to look at but when a trust isn't involved, the only parts that need to be completed are the top of the page, and Part IV on the last page. This makes it relatively simple (as tax forms go at least.)
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