Presentation on theme: "Estate Planning in 2013 and Beyond"— Presentation transcript:
1Estate Planning in 2013 and Beyond Prepared by:Julius H. Giarmarco, J.D., LL.M.Giarmarco, Mullins & Horton, P.C.101 W. Big Beaver Road, 10th FloorTroy, Michigan 48084(248)
2Capital Gains and Dividends Income Tax Rates for 2013Taxable IncomeMedicare Tax$200,000+ (AGI)$250,000+ (AGI)33%15%3.80%$300,000+ (AGI)**$398,350+35%$400,000+$450,000+$11,95039.60%20%Capital Gains and DividendsOrdinary IncomeEarned Income*Investment IncomeSingleJointTrusts*Earned income Medicare tax includes 1.45% employer portion**Phaseout of personal exemptions and itemized deductions begins
3Federal Estate, Gift and GST Tax Exemptions and Rates 20122013,had Congress failed to act2013+ after fiscal cliff rescueExemptionRateTop RateExemption*Estate Tax$5,120,00035%$1,000,00055%$5,250,00040%Gift TaxGST Tax$1,430,000*Adjusted annually for inflation.
4Administration’s Proposals that Didn’t Make it into the 2012 Act Eliminate a trust’s GST exemption on the trust’s 90th anniversary.Eliminate valuation discounts on family-controlled entities.Require a minimum 10-year term for GRATs.
5Administration’s Proposals that Didn’t Make it into the 2012 Act Modify the treatment of “grantor trusts” so that:Trust assets would be subject to estate tax.Distributions to a beneficiary during the grantor’s lifetime would be subject to a gift tax.Trust assets would be subject to gift tax if the trust ceases to be a grantor trust during the grantor’s lifetime.
6Administration’s Proposals that Didn’t Make it into the 2012 Act Caution: Most ILITs are grantor trusts!The power to use trust income to benefit the grantor’s spouse (IRC 677(a)(1));The power to use income to pay premiums on policies insuring the grantor (IRC 677(a)(3)); orThe grantor’s non-fiduciary power to substitute trust assets for assets of an equivalent value (IRC 675(4)(C) and Rev. Rul ).
7Planning for Married Couples under $5.25 Million GRATPlanning for Married Couples under $5.25 Million
8Planning for Married Couples under $5.25 Million Transfer taxes generally irrelevant.Should an estate tax return (Form 706) be filed at first death to make portability election?
9Planning for Married Couples under $5.25 Million Wills, Living Trusts, General Powers of Attorney and Patient Advocate Designations will continue to be needed to:Set forth the couple’s dispositive wishes.Name guardians for minor children.Avoid the costs, delays and publicity associated with probate.Make end-of-life decisions.
10Planning for Married Couples under $5.25 Million Preserve step-up in basis at death of each spouse by:Leaving assets outright to surviving spouse by joint ownership, beneficiary designation or a simple will.Giving surviving spouse a testamentary general power of appointment over assets held in trust.Taking steps to cause assets in an irrevocable trust to be included in the Settlor’s (or Settlor’s spouse’s) gross estate.
11Planning for Married Couples under $5.25 Million Trusts will continue to be popular:For surviving spouses not capable of managing assets;In second marriages with blended families;Where the parties fear the surviving spouse may remarry;For beneficiaries with disabilities (Special Needs Trusts); and/orFor asset protection.
12Planning for Married Couples under $5.25 Million Dealing with the highest income tax rates (39.6% and 3.8%) that apply to trusts with undistributed income of more than $11,950 (in 2013).Invest for growth instead of income.Make distributions to move the tax to the beneficiary’s bracket.Invest trust property in muni-bonds, annuities and/or life insurance.
13Planning for Married Couples under $5.25 Million Focus shifts to maintaining standard of living.Not outliving one’s assets.Stretch IRAs.Elder Law / Medicaid Planning.
14Planning for Married Couples under $5.25 Million Rethinking traditional planning.Portability over credit-shelter trusts.Personally-owned life insurance over ILITs.
15Planning for Married Couples in $5- $10 Million Range GRATPlanning for Married Couples in $5- $10 Million Range
16Planning for Married Couples in $5- $10 Million Range In addition to the planning issues for married couples under $5 million, couples in this range must decide on whether to rely on portability or to use credit shelter trusts.Portability:Now permanent.A surviving spouse can use the unused estate tax exemption of his/her last spouse.Eliminates the need of a credit shelter trust to take advantage of both spouse’s exemptions.
17Planning for Married Couples in $5- $10 Million Range Situations favoring portability:Couples who are more interested in two basis step-ups than removing future appreciation out of their estate.A competent spouse who can manage assets.A first marriage or no children from prior marriages.A desire to avoid increased income tax applicable to trusts.A desire not to retitle assets into living trusts and for administrative simplicity.
18Planning for Married Couples in $5- $10 Million Range Situations favoring portability:Qualified plans and IRAs are the predominant asset in the estate.Creditor protection for surviving spouse is not a concern.A desire of the surviving spouse to use the deceased spouse’s exemption to create an intentionally-defective grantor trust for the benefit of children (and more remote descendants).
19Planning for Married Couples in $5- $10 Million Range Situations favoring credit shelter trusts:A desire to remove future appreciation from the estate.Blended families.A desire for professional management, for restricting the surviving spouse’s access to funds and/or for creditor protection.A desire to start the statute of limitations on hard-to-value assets used to fund the credit shelter trust. May be a low audit risk at first spouse’s death.
20Planning for Married Couples in $5- $10 Million Range Advantages of credit shelter trusts:No portability of deceased spouse’s GST exemption.The deceased spouse’s unused exemption is lost if the surviving spouse remarries and predeceases his/her next spouse.
21Optional Credit Shelter Trust – Disclaimer Trust Living TrustHeirsFirst Spouse’s DeathSurviving SpouseCredit Shelter TrustWithin 9 months time may disclaimEverything is left to surviving spouse outright, except what he/she disclaims.Surviving spouse can receive income and principal for health, education, maintenance and support; plus a 5% annual withdrawal right.Surviving Spouse’s DeathAfter second death, all trust assets pass to the couple’s heirs.
22Planning for Married Couples above $10 Million GRATPlanning for Married Couples above $10 Million
23Planning for Married Couples above $10 Million ILITs.Dynasty Trusts.Spousal Lifetime Access Trusts (SLATs).Grantor Retained Annuity Trusts (GRATs).Intentionally-Defective Grantor Trusts (IDGTs).Qualified Personal Residence Trusts (QPRTs).
24Children and More Remote Descendants ILITsCrummey GiftsPremium PaymentsGrantor/InsuredDynasty/ILITInsurance CompanyAllocate GST ExemptionDeath BenefitNet ProceedsChildren and More Remote Descendants
25Switching ILITsSale of policy from old ILIT to new ILIT for cash or promissory note.If purchase price is at fair market value, then three-year rule of IRC Sec does not apply.No transfer-for-value if new ILIT is grantor trust. Rev. RulNo gain on sale if old ILIT is a grantor trust (or if no gain in policy).
26Dynasty Trusts Dynasty Trust Grantor Advantages No transfer tax paid. Discretionary Distributionsto Children for LifeAdvantagesCreditor protectionDivorce protectionEstate tax protectionDispositive plan protectionSpendthrift protectionConsolidation of capitalNo transfer tax paid.Discretionary Distributionsto Grandchildren for LifeNo transfer tax paid.Discretionary Distributionsto Great-Grandchildrenfor LifeGift should take advantage of any remaining lifetime gift exclusion and lifetime GST exclusionNo transfer tax paid.Future Generations
27Dynasty Trusts $1 Million After-Tax Growth Value of Dynasty Trust After 90 YearsValue of Property if No Trust5.00%$80,730,365$29,062,927
28Remainder to children and more remote descendants SLATsGrantorSLATAssetsSpouse is trustee; and spouse and children have access to income and principal; spouse is primary beneficiarySpouse and childrenAt spouse’s deathRemainder to children and more remote descendants
29Non-Reciprocal SLATsIf Husband and Wife set up trusts for each other that are similar, then the two trusts may be “uncrossed” and treated for estate tax purposes as if each spouse had created a trust for himself / herself. United States v Grace, 395 USGift splitting is generally unavailable with SLATs.
30Non-Reciprocal SLATsDifferent provisions for distribution of income and principal.Sprinkling of income.5% / $5,000 withdrawal power.Different limited powers of appointment.Different assets and amounts.Different trustees.Different funding dates.
31Non-Reciprocal SLATsIf the richer spouse transfers assets to the poorer spouse so that the poorer spouse can establish a SLAT, this might trigger the step-transaction doctrine.In Holman, 130 T.C. No. 12 and Gross, T.C. Memo , gifts of partnership interests 6 days and 11 days, respectively, after the formation of the partnership were ruled not to be step transactions.
32GRATs GRAT Grantor (Age 70) Beneficiaries $1 million of Securities ______________________End of Year 1End of Year 2GRAT Remainder$117,672$1 million of Securities$520,156 of Securities$520,156 of SecuritiesActual Asset Transfer $1,000,000 Annuity Payments (Projected) $1,040,312 Remainder (Projected) $117,672Taxable Gift $0.09Assumed 10% growthAssumed Section 7520 rate: 1%$117,672 of SecuritiesBeneficiaries
33IDGT AuthoritiesSale to a grantor trust is disregarded for income tax purposes. Rev. RulGrantor’s payment of trust’s income taxes is not a gift. Rev. RulPower of substitution does not result in adverse estate tax consequences. IRC Sec. 675(4)(c) and Rev. RulPower of substitution over life insurance not an incident of ownership. Rev. Rul
34Life Insurance Company Sale / Loan to IDGT1. Gifts $1M5. Excess Cash Flow/PremiumsGrantor/ InsuredIDGTLife Insurance Company2. Sells/Loans $9M6. Death Proceeds (Income and Estate Tax Free/Leverages GST Exemption)3. $9M Note to Grantor Balloon Payment in 9 Years4. $78,300 annual interest (Interest Rate 0.87%)Advantages:Value of loan proceeds frozen at 0.87% for nine years (January 2013 mid-term AFR).Grantor’s estate further reduced by the income taxes paid on behalf of the trust.The trust property escapes estate taxation for as long as permitted under state law.Possible valuation discounts for promissory note in Grantor’s estate.
35Grantor Trust vs. Non-Grantor Trust YearBeginning BalanceTaxable Income 7%Less: Taxes at 40%Ending Balance1$10,000,000$700,000$(280,000)$10,420,000$$10,700,000210,420,000729,400(291,760)10,857,64010,700,000749,000-11,449,0003760,035(304,014)11,313,661801,43012,250,4304791,956(316,783)11,788,835857,53013,107,9605825,218(330,087)12,283,966917,55714,025,5176859,878(343,951)12,799,892981,78615,007,3047895,992(358,397)13,337,4881,050,51116,057,8158933,624(373,450)13,897,6621,124,04717,181,8629972,836(389,135)14,481,3641,202,73018,384,592101,013,695(405,478)15,089,5811,286,92119,671,514
36IDGT vs. GRAT With IDGT: No mortality risk. Can allocate GST exemption to seed gift.Mid-term AFR is less than Section 7520 rate.Back-loading (i.e., interest only with balloon payment vs. level annuity payment).Not a statutory technique.Possibility of unintended gift tax, which may be mitigated by using a “defined value” clause.
37Qualified Personal Residence Trusts GrantorQPRTRent-Free Right of Use of Residence for 15 YearsAfter Expiration of Selected Term of YearsASSUMPTIONS:Grantor’s Age 70FMV of Residence $2,000,000FMV in 15 yearsat 5% growth $4,157,856 Term of QPRT 15 YearsInitial Gift $793,960FET Savings (40%) $1,345,558§7520 Rate for Jan. ‘13 1%GrantorChildren or ILITPaysRESULTS:Rent
38Impact of New Tax Act on Life Insurance GRATImpact of New Tax Act on Life Insurance
39Impact of New Tax Act on Life Insurance Tax-deferred investments will become increasing popular.Permanent life insurance not only provides tax deferral and tax-free access to cash values (via policy loans and withdrawals up to basis), it also provides an income tax free death benefit.For conservative investors, the internal rate of return on life insurance is generally quite competitive.
40Impact of New Tax Act on Life Insurance Charitably-inclined individuals will consider donating appreciated securities (rather than cash) to charities to avoid the 23.8% capital gains tax on the appreciation.The donor can then use cash to purchase life insurance, which offers tax-free growth and tax-free access to cash values.The charitable income tax deduction can help to offset the cost of purchasing the policy.
41Impact of New Tax Act on Life Insurance Charitable remainder trusts will be more attractive to potential donors.The charitable income tax deduction can be used to fund a “wealth replacement” trust.Non-qualified deferred compensation arrangements will be more popular.Life insurance remains one of the most efficient methods of “informally” funding a non-qualified deferred compensation plan.
42Impact of New Tax Act on Life Insurance With fewer decedents being subject to estate taxes, an ILIT may be viewed as less costly and complex than the other planning acronyms (SLATs, GRATs, IDGTs, QPRTs, CLATs, etc.).The higher gift and estate tax exemption will assist in funding ILITs without the inconvenience of having to use Crummey withdrawal powers.
43Uses for Life Insurance in Non-Taxable Estates Replace lost income.Wealth replacement in connection with a CRT.Estate equalization in connection with a family business.Creditor protection.Second marriages and blended families.
44Uses for Life Insurance in Non-Taxable Estates Special needs children.Annuity arbitrage.As an alternative to long-term care insurance.Charitable planning.Avoiding income taxes on traditional retirement plans.