Déjà vu– As was the case sixteen years ago in January 2001, we ring in the new year with a Republican president and a Republican-controlled Congress threatening to repeal the federal estate tax. What’s a taxpayer to do? President Trump has proposed a repeal of the federal estate tax and a $10 million exemption for capital gains at death (without any additional specificity). The House Republicans have proposed a repeal of both the estate and generation-skipping transfer (“GST”) tax. Ultimately, we don’t really know what legislation will pass, or when. Will the gift tax remain? Will there be a capital gain tax on inherited assets (which effectively reduces death taxes but does not eliminate them)? Will the Republicans be able to pass a true repeal of the federal estate tax or will a repeal be temporary, with a sunset back to today’s rates after ten years? In such uncertain times, estate planning is more important than ever!
Planning with no estate tax.
- Review of current plan. If Congress were to pass a permanent estate tax repeal (which we believe would be very difficult), it will be important for clients to review their current estate plan with their estate planner to determine if modifications are needed. Flexibility will continue to be important so that your estate plan covers the different potential scenarios with or without an estate tax.
- Federal estate tax provisions. Many times planning is tied to the available federal estate or GST tax exemption. In 2017, the federal estate tax exemption is $5,490,000 per person, and $10,980,000 for a married couple. If the federal estate tax were repealed, many clients’ estate plans would need to be updated. In the event of a repeal, there are some plans that would cause the entire estate to pass to a client’s descendants, while the spouse would be disinherited.
- State estate tax provisions. Despite a repeal of the federal estate tax, state estate tax planning may still be necessary. As of January 1, 2017, Maryland has an exemption from its estate tax of $3,000,000 per taxpayer, which will increase to $4,000,000 in 2018 and will match the federal exemption in 2019. Beginning in 2017, the District of Columbia estate tax exemption is $2,000,000 per person. If the District hits certain revenue targets, its exemption could rise to match the federal exemption in future years. If the federal estate tax law changes, it is uncertain whether Maryland and/or D.C. will revise their estate tax laws to ensure the continued existence of a state-level estate tax.
- Charitable bequests. Clients may have large charitable bequests under their plans that were included to reduce federal estate taxes. Such clients may want to reduce or remove these charitable bequests if assets can be transferred to family members free of Federal estate taxes.
- Review of life insurance. Often clients purchase individual or joint and survivor life insurance policies for the purpose of providing an illiquid estate with cash to pay estate taxes. If the federal estate tax is repealed, clients will need to weigh the costs and benefits of maintaining such insurance policies. Do you hedge and keep some insurance in case the estate tax is reintroduced? Do you still have a state estate tax or a new capital gains tax for inherited assets to mitigate with insurance?
- Gift planning. If the federal estate tax is repealed, it will be more advantageous than ever to move assets into an irrevocable trust for family members to protect such assets from estate taxes should the tax be reinstated in the future. To avoid giving too much to descendants too soon, a spouse could be included as a potential trust beneficiary.
- Trust protection. Although trusts have been included in estate plans for estate tax planning for many years, there are numerous nontax reasons to incorporate trusts in your estate plan, irrespective of an estate tax repeal:
- Creditor protection (including a former spouse in a divorce);
- Planning for spouses with children from prior marriages;
- Spendthrift or minor beneficiaries;
- Special needs beneficiaries; and
- Creation of a common family investment fund.
Planning with an estate tax. Because of the uncertainty of the estate tax laws in the near future and the distant future, we will continue to plan for our clients as usual (other than to avoid making taxable gifts where possible). Certain decisions may be postponed until we have a better idea of the future tax landscape. We will continue to provide flexibility in our documents and recommend that our clients do the following:
- Review of current estate plan. Again, if your plan incorporates distributions that are linked to the federal estate or GST exemption, you should update your plan to ensure that your assets will pass to your heirs as intended, regardless of changes to federal tax law.
- Continue with certain gifting. Although it may make sense to defer any gifts that would require the payment of a gift tax, if your goal is to benefit family members currently, there is no reason to defer certain tax-free gifting.
- Annual exclusion and excluded gifts. In 2017, the gift tax annual exclusion amount remains at $14,000. This is the amount you can gift to any number of persons and it is not considered a taxable, reportable gift. If no additional reportable gifts are made in 2017, a gift tax return does not need to be filed. Subject to certain restrictions, you can also pay a person’s tuition and medical expenses without it being counted as a gift, so long as the payment is made directly to the educational institution or medical provider. There is no cap on the amount of tuition or medical expenses that can be paid on a person’s behalf in any given year.
- 2017 Gift Tax Exclusions/Exemptions: As of January 1, 2017, the federal GST and gift tax exemptions are $5,459,000 per person, allowing you to gift up to this amount during your lifetime to any one or more persons without having to pay gift or GST taxes. Please note, however, that, even though no gift or GST tax would be owed, gifts in excess of $14,000 per recipient must be reported on a timely-filed gift tax return.
Income tax planning for irrevocable trusts.
Trust income is taxed at the highest personal income tax level (39.6%) for income exceeding $12,500. There is an additional surcharge of 3.8% for certain types of income. This surcharge was enacted as part of the “Obamacare” legislation. Republicans have indicated that repealing President Obama’s Patient Protection and Affordable Care Act is a top priority, but for now, the surcharge remains a concern for trustees. Clients should discuss with their advisors whether or not it would be more advantageous to distribute trust income to the trust beneficiaries in order to have such income taxed at the beneficiary’s income tax rate, especially if the beneficiary’s rate is lower than the trust’s rate. Such distributions can be made for the first 65 days of the tax year (or by March 5, 2017) and still qualify as a 2016 income distribution.