Part Three: The Unclaimed Property Law

The vast majority of the property that escheats to the State of California does so subject to the Unclaimed Property Law. This law is a modern statute which lays out detailed rules governing how and when various types of property escheat to the State, how the property is to be managed while in the State Controller’s custody, and the methods for returning unclaimed property to its rightful owner. The key concept is that property that escheats to the State under this law does not permanently belong to the State – it can always be reclaimed by a person who can establish the right to ownership. However, this law does not apply to property that escheats to the State as part of a probate proceeding, and as such, it does not apply to real property.
 
What does the State Controller do with the unclaimed property in the State’s custody?
When the property is money, it is deposited into an account which is held on behalf of the owner. Property other than money – typically this will be securities, other financial instruments, or personal property not rejected by the Controller – is held by the Controller for around 18 months to two years after it has escheated to the State. Any income generated during this holding period is credited to the owner’s account. Once the holding period is finished, the Controller will sell off the property, with the net proceeds of the sale being retained on the owner’s account. If the Controller determines that the probable cost of the sale exceeds the value of the property, the Controller can decide not to liquidate the property.
 
Does the State pay interest on unclaimed property?
No. Other than the income generated by property other than cash prior to liquidation by the Controller, no interest is paid on unclaimed property. This means that, even if the State holds a large sum of cash for many years, no interest will be paid to the owner if it is ever claimed. For this reason, if the property is an asset that tends to appreciate over time, its owner will lose the opportunity to benefit from that growth once the asset has been converted to cash. This is perhaps the most important reason why a person who is the rightful owner of some unclaimed property should claim it as soon as possible.
 
Can claiming property result in a capital gain?
Yes. If property other than cash appreciates during the period while it is being held by the Controller, the owner will have a capital gain if the net sale price when the Controller liquidates the property is higher than the owner’s tax basis in the property.
 
What is the time limit for bringing a claim?
Because there is no permanent escheat under the Unclaimed Property Law, there is no specific time limit for bringing a claim. However, if the property is an asset other than cash which has been sold or discarded prior to the initiation of the owner’s claim, the owner may only be able to get the proceeds of the sale, or nothing, depending on the situation.
 
Can I claim real estate?
Real estate is not subject to the Unclaimed Property Law, so there is no way to claim real estate under it. If real estate has escheated to the State under another statute (such as in a probate proceeding), claims to reobtain it must be handled through a different statutory scheme. Because those claims can be complicated, most claimants should seek assistance from a competent attorney.
 
When can the State Controller destroy or discard unclaimed property?
If the State Controller determines that property which has escheated to the State under the Unclaimed Property Law has no commercial value, the property is only required to be retained for a period of seven years. Following that, the property may be destroyed or discarded at any time. Once the property has been disposed of, the rightful owner is no longer allowed to make a claim to recover it, and since the property had no commercial value, the owner cannot recover any sale proceeds either. Alternatively, if the Controller determines that it would not be in the interest of the State to take custody of a piece of tangible personal property which would otherwise have escheated to the State, the Controller has the authority to reject the property and prevent it from escheating in the first place.

If you are interested in learning more about how to protect your property, contact us today to schedule a consultation.
 
Copyright © Stone, Doyle & Heffel 2026.
 
This article is intended for informational purposes only and not for the purpose of giving legal advice for a specific person or situation. Nothing in this article should be taken as legal advice, and reading it does not create an attorney-client relationship.

This article builds on the post from last month which provides an introduction to the basic concepts related to tax basis. Access that article here to learn more.
 
A significant part of the estate planning process is determining how and when to distribute a person’s assets among their friends and loved ones, as well as to charitable and other organizations. If a person has any appreciated assets (assets that have increased in value beyond the person’s basis in them), the so-called “step-up” in basis may come into play within the estate plan. This article will introduce the tax rule known as the step-up in basis and explain some of the ways in which it should be considered during the estate planning process.
 
What is a “step-up” in basis?
In most cases, when the owner of an asset leaves it to someone else upon their passing, the recipient’s basis in the asset is the fair market value of the asset on the date of the owner’s death. Since many assets tend to appreciate over time, the result is that the recipient’s basis is often higher than the original owner’s basis. This increase in basis in an asset upon the death of the original owner is called a “step-up” in basis.
 
The importance of a step-up in basis arises when the recipient sells the asset. Because capital gains (and losses) are measured using the difference of the sale price of an asset and the basis, having a higher basis means that the recipient will realize a smaller capital gain (or a larger loss) and thus have a smaller capital gains tax burden. For a highly appreciated asset, this could lead to significant tax savings.
 
As discussed in a previous article, the owner of an asset generally must expend money – either by paying taxes or paying for improvements – to increase their basis in a piece of property. The step-up in basis that occurs at death is one of the few ways that basis can be increased without incurring any costs, so it represents a special opportunity to save on taxes through careful planning.
 
How can the step-up in basis affect estate planning?
When a person has an asset that they want to eventually give to someone else, there are basically two options for when to transfer the asset: either during the owner’s lifetime – as a gift – or upon the owner’s passing. As discussed previously, when a person receives an asset as a gift, the recipient’s basis in the asset is the same as the original owner’s. However, when an asset is transferred upon the owner’s death, the recipient gets a step-up in basis.
 
This means that the recipient of a lifetime gift who then sells the asset will owe the same capital gains taxes that the original owner would have owed on the sale. In contrast, the recipient of an asset transferred at death will only ever owe capital gains taxes on appreciation that occurs after the original owner’s death – all of the capital gains taxes that would have been due if the original owner had sold the gift during their lifetime never arise because of the step-up in basis.
 
For example, suppose that "A" purchased some stock in 2007 for $15,000.00 and that the stock has appreciated to a value of $70,000.00 in 2025. A plans to give the stock to her son "B" at some point. If A gives the stock to B as a gift during A’s lifetime, B will get the same basis in the stock that A has: $15,000.00. That means that if B then sells the stock for $70,000.00, B will be realizing a capital gain of $55,000.00, potentially incurring capital gains taxes of upwards of $11,000.00. If A instead decides to keep the stock for the rest of her life and leave it to her son, B’s basis in the stock will be the fair market value of the stock on the date of A’s death. If this value is $80,000.00, B will then be able to sell the stock for up to $80,000.00 without realizing any capital gains, and B will only potentially owe capital gains tax on appreciation beyond that value. Thus, A can give B the same shares of the same stock, but by waiting until A’s death before making the transfer, B can enjoy significant tax savings. The primary trade off is that B has to wait until after A's passing before accessing any funds from the sale of the stock.
 
This example illustrates the fact that, from the perspective of capital gains, transferring a highly appreciated asset at death can lead to substantial tax savings when compared to gifting the same asset during the original owner’s lifetime, as long as the person receiving the gift can afford to wait for it.
 
Is there ever a “step-down” in basis?
It is also important to understand that when the original owner’s basis in an asset was higher than the fair market value of the asset on the date of the owner’s death, the recipient’s basis in the asset will be lower than the original owner’s was. This is called a “step-down” in basis. While less common, a step-down in basis is disadvantageous to the recipient, so if the owner of an asset has a basis in the asset that is much higher than the asset’s fair market value, the owner should probably consider selling off or gifting the asset during life.
 
Does cost basis matter in all cases?
As a final note, if the recipient of an asset never sells it off, no capital gains taxes will be incurred, so having a higher or lower basis in the asset will not affect the recipient’s income tax liability. An example of this might be a situation in which the asset is a house and the recipient intends to continue living in the house indefinitely.
 
If you are interested in learning more about how the step-up in basis should be considered in connection with your estate plan, contact us today to schedule a consultation.
 
Copyright © Stone, Doyle & Heffel 2025.
 
This article is intended for informational purposes only and not for the purpose of giving legal advice for a specific person or situation. Nothing in this article should be taken as legal advice, and reading it does not create an attorney-client relationship.

​Basis is a key element of the calculation of capital gains taxes, but it may be an unfamiliar concept for many people. In simplest terms, a capital gain (or loss) is the difference between the value at which an asset is sold and the value at which it was acquired, and the basis essentially represents the acquisition value which is imputed to an asset’s owner. If the owner of an asset sells the asset for a value which is higher than the owner’s basis in the asset, there is a capital gain. Conversely, if the owner of an asset sells the asset for a value which is less than the owner’s basis in the asset, there is a loss. Since many capital gains are taxable both at the state and federal levels, understanding basis is often an essential step in determining income tax liability.

​This post will provide an introduction to some of the different ways that basis can be calculated and also a few situations in which basis is adjusted.
 
How is basis usually calculated?
In general, the basis of an asset is the amount that the owner paid to acquire it. This is also called the “cost basis.” For example, if you buy a share of stock for $25.00, your basis in the stock is $25.00. If you buy a house for $350,000.00, your basis in the house is $350,000.00, and so on. Since most people use money to acquire most of their assets, cost basis is the most common type of basis, especially for securities and other assets which cannot be improved or depreciated.
 
When a person purchases an asset using debt, the principal of the loan is included as part of the basis. For example, if you buy a house for $800,000.00, paying $150,000.00 in cash and financing the rest with a loan for $650,000.00, your basis in the house is $800,000.00. When you make payments against the loan and reduce the principal outstanding, you increase your equity in the house, but your basis remains the same. Importantly, loan interest payments are not included as part of an owner’s basis in a piece of property.
 
How is basis calculated for assets that are bartered rather than sold?
While less common than sales, people also frequently barter for goods and services. In this type of arrangement, one person provides an asset to another person in exchange for a different good or service. In such exchanges, there is no cash that changes hands, so a person’s basis is determined using the fair market value of the asset received in the exchange. For example, if a handyman does repair work at a customer’s house in exchange for a used power tool with a fair market value of $300.00, the handyman’s basis in the tool is $300.00. Similarly, if you trade a painting worth $500.00 to your neighbor in exchange for a used e-bike, your neighbor’s basis in the painting is $500.00.
 
How is basis handled when an asset is given as a gift?
When one person gifts an asset to another, no payment is required in exchange, so the new owner of the asset acquires it without incurring any cost. However, the new owner’s basis in the asset generally is not zero. Instead, the recipient of a gift gets the same basis as the gift giver.
 
For example, suppose a single homeowner purchased her home in 1975 for $50,000.00. Assuming that the homeowner maintained the house but did not make any improvements, her basis in the house is still $50,000.00. If the market value of the house is now $900,000.00 and the homeowner sells, she would realize a capital gain of $850,000.00 (which could be lowered by $250,000.00 if she takes the primary residence exclusion), and thus owe significant capital gains taxes. If she instead gifted the house to her son, the son would have the same $50,000.00 basis, and he would also face significant capital gains tax liability if he ever sold the house.
 
When is a person’s basis adjusted?
A person’s basis in an asset is adjusted up or down in various situations, but as a general rule, if the owner spends money to improve or increase the value of an asset, the basis is adjusted up, and if the owner takes a deduction for depreciation or some other tax credit, or receives an insurance payout when an asset is damaged or destroyed, the basis is adjusted down. For example, if a homeowner spends $100,000.00 to add on a new bedroom and bathroom to a house, the homeowner’s basis in the house will typically increase by $100,000.00.
 
Another important basis adjustment happens when gift tax is paid on the transfer of an asset. When the gift giver pays gift taxes on a gifted asset, the recipient’s basis in the asset is increased by the amount of the gift taxes that were paid. For example, suppose a homeowner has a basis of $10,000.000 in a piece of real property which is now worth $100,000.00. If the homeowner gifts the property to his daughter and pays $32,000.00 in gift taxes on the transfer, the daughter’s basis in the property will be $42,000.00.
 
For depreciable assets, basis is adjusted down each year as the asset depreciates. The reduction in basis is equal to the amount which the asset’s owner deducts for depreciation (or the amount which the owner was entitled to deduct). This continues until the basis of the asset reaches zero.

If you are interested in learning more about how basis should be considered in connection with your estate plan, contact us today to schedule a consultation.
 
Copyright © Stone, Doyle & Heffel 2025.
 
This article is intended for informational purposes only and not for the purpose of giving legal advice for a specific person or situation. Nothing in this article should be taken as legal advice, and reading it does not create an attorney-client relationship.