Does a spouse get a step up in basis on property inherited through a LLC that he was the only member?

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My spouse formed an LLC in 2007 and transfered 3 pieces of commercial property into the LLC name. My spouse died in 2013 and I (his spouse) inherited all of his property. If I were to sell the commercial property would I get a step up in basis on the value at the time of his death? Also will I be able to depreciate the property based on the new value? These properties were totally depreciated.

Attorney Answer

1
John Corrigan ·
You do not get a basis step-up in the properties automatically by reason of death. You get a basis step-up in the LLC Membership Interest instead. However, o then achieve what you want, you can distribute out the properties to yourself and the basis in the LLC Membership Interest will be converted into the new stepped-up basis in the properties so distributed to you on liquidation of the LLC. You would then create 3 new LLC's and contribute the 3 parcels into its own separate LLC for two reasons: (1) separate risk of loss on one property affecting the other 2, and (ii) the new LLC will have a basis in the property equal to what it was in your hand's at time of contribution (i.e. the stepped up to FMV at time of death). You would then take depreciation deductions based on this new tax basis in the property.
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