Articles About Estate Planning

Since the beginning of 2011, clients who pass away and leave their assets to their spouse have been able to bequeath not only their property, but also their unused estate tax exemption. As a result, bypass trusts are no longer necessary to preserve the estate tax exemption of the first spouse to die. Unfortunately, though, the portability of the estate tax exemption is only temporary, and is scheduled to expire at the end of the year.

Recently, though, the Treasury put forth Proposed and Temporary Regulations, intended to clear up some areas of confusion around portability, and invite public comments to further press towards Final Regulations.

While the regulations bring some welcome clarification – and a few positive changes for planners as well – the fact that the Treasury went through the trouble of working on regulations also suggests that they, too, expect portability to ultimately become permanent. While most planners aren’t counting on the change yet, the new regulations do provide a good opportunity to better understand the details of portability and how it may play out in the future.Read More…

As the country continues to struggle with its fiscal woes, Congress and the White House are increasingly proposing tax law changes intended to cut down on perceived “abuses” and “tax loopholes” – especially those used by the wealthy. The latest, in the President’s Fiscal Year 2013 budget, is a proposal to change to the estate tax laws, requiring any grantor trust to be included in the estate of the grantor (or pay gift taxes if the grantor trust assets are distributed before the grantor’s death).

The proposal would kill the popular Intentionally Defective Grantor Trust (IDGT) estate planning strategy, which works specifically by relying on the fact that a trust can be a grantor trust for income tax purposes even while being excluded from the grantor’s estate for estate tax purposes – after all, if the grantor trust is automatically included in the grantor’s estate, there’s no longer any value to make gifts or sales of property to an IDGT.

While the rules are only proposed at this point – and would only apply to trusts created in the future, after the enactment date of any legislation – the fact that the change was proposed at all suggests that the days of IDGT planning strategies may be numbered. Read More…

In 2012, planners and clients once again face the proposition of the estate tax ‘sunset’ that next year may revert the estate tax exemption and rate back to their 2001 levels. This impermanence in the current rules, with a scheduled lapse to a less favorable environment, creates an opportunity for clients to take decisive action while the current rules hold.

Yet at the same time, if Congress ultimately does extend the current rules, decisive action may simply lead to irrevocable transfers that prove to be unnecessary, but cannot be unwound after the fact – a potential hardship for all but the wealthiest of ultra high net worth clients. And the reality is that there is little historical precedent for Congress to actually decrease the estate tax exemption or increase the estate tax rate – such a shift hasn’t occurred since World War II!

Accordingly, some planners have begun to lean in the opposite direction – viewing the current environment not as one for decisive action, but one for tentative flexibility and a wait-and-see approach. Read More…

The implementation of the Economic Growth and Tax Relief Reconciliation Act of 2001, which both increased the Federal estate tax exemption and more importantly eliminated the state estate tax credit, started the process of "decoupling" between the Federal estate tax and various states. As the years moved forward, many states retained a $1 million estate tax exemption amount, decoupling their exemption from the Federal amount that has ultimately risen to its current $5 million level. However, the reality is that a second decoupling just occurred in 2011 – the decoupling of state estate tax exemptions from the Federal gift tax exemption. As a result, a new state estate tax planning "loophole" has opened up, creating a planning opportunity for many clients… but only until the states close the loophole.Read More…

Lifetime gifting is a widely accepted technique for managing potential exposure to future estate taxation. The purpose of the strategy is not just the obvious "if I give it away while I’m alive, I can’t be taxed on it when I die" – due to the fact that both gifting and estate taxation share the same single lifetime exemption amount that is protected from taxation. Nonetheless, gifting can still be highly effective, because once the asset is transferred, all future appreciation is in the hands of the donee, and not the donor; as a result, the value of the asset is "frozen" at its value on the date of gift in terms of its cumulative gift and estate tax impact. And with the gift tax exemption recently increased to $5 million – and only until the end of 2012, after which it is scheduled to lapse back to $1 million – many estate planners are counseling clients to make some big gifts while they can. There’s just one problem: it’s not clear whether a future reduction in the gift and estate tax exemption could indirectly cause a so-called "recapture tax" on prior gifts.Read More…

Planning around estate taxes by using a Bypass Trust is a “basic” strategy that has been around for decades. In fact, for many clients, it was a major impetus to get their estate planning done in the first place – if your estate was above a certain threshold and you didn’t get estate documents that would put a proper Bypass Trust in place, it could cost your beneficiaries hundreds of thousands of dollars.

Yet with the new provisions of the tax legislation signed into law last week by President Obama, Bypass Trusts will no longer be necessary for many clients to maximize the use of a couple’s estate tax exemptions – which means it may be time to bypass the Bypass Trust planning strategy.

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Do your clients have retirement accounts held directly with Vanguard? More than one? Do you know who the beneficiaries are for each account? Are you SURE you have that right? Sorry, think again.

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