1. Estate 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 Floor
Troy, Michigan 48084
(248)

2. Capital Gains and Dividends
Income Tax Rates for 2013
Taxable Income
Medicare Tax
$200,000+ (AGI)
$250,000+ (AGI)
33%
15%
3.80%
$300,000+ (AGI)**
$398,350+
35%
$400,000+
$450,000+
$11,950
39.60%
20%
Capital Gains and Dividends
Ordinary Income
Earned Income*
Investment Income
Single
Joint
Trusts
*Earned income Medicare tax includes 1.45% employer portion
**Phaseout of personal exemptions and itemized deductions begins

3. Federal Estate, Gift and GST Tax Exemptions and Rates
2012
2013,
had Congress failed to act
2013+ after fiscal cliff rescue
Exemption
Rate
Top Rate
Exemption*
Estate Tax
$5,120,000
35%
$1,000,000
55%
$5,250,000
40%
Gift Tax
GST Tax
$1,430,000
*Adjusted annually for inflation.

4. Administration’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.

5. Administration’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.

6. Administration’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)); or
The grantor’s non-fiduciary power to substitute trust assets for assets of an equivalent value (IRC 675(4)(C) and Rev. Rul ).

7. Planning for Married Couples under $5.25 Million
GRAT
Planning for Married Couples under $5.25 Million

8. Planning 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?

9. Planning 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.

10. Planning 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.

11. Planning 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/or
For asset protection.

12. Planning 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.

13. Planning 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.

14. Planning for Married Couples under $5.25 Million
Rethinking traditional planning.
Portability over credit-shelter trusts.
Personally-owned life insurance over ILITs.

15. Planning for Married Couples in $5- $10 Million Range
GRAT
Planning for Married Couples in $5- $10 Million Range

16. Planning 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.

17. Planning 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.

18. Planning 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).

19. Planning 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.

20. Planning 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.

21. Optional Credit Shelter Trust – Disclaimer Trust
Living Trust
Heirs
First Spouse’s Death
Surviving Spouse
Credit Shelter Trust
Within 9 months time may disclaim
Everything 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 Death
After second death, all trust assets pass to the couple’s heirs.

22. Planning for Married Couples above $10 Million
GRAT
Planning for Married Couples above $10 Million

23. Planning 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).

24. Children and More Remote Descendants
ILITs
Crummey Gifts
Premium Payments
Grantor/
Insured
Dynasty/
ILIT
Insurance Company
Allocate GST Exemption
Death Benefit
Net Proceeds
Children and More Remote Descendants

25. Switching ILITs
Sale 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. Rul
No gain on sale if old ILIT is a grantor trust (or if no gain in policy).

26. Dynasty Trusts Dynasty Trust Grantor Advantages No transfer tax paid.
Discretionary Distributions
to Children for Life
Advantages
Creditor protection
Divorce protection
Estate tax protection
Dispositive plan protection
Spendthrift protection
Consolidation of capital
No transfer tax paid.
Discretionary Distributions
to Grandchildren for Life
No transfer tax paid.
Discretionary Distributions
to Great-Grandchildren
for Life
Gift should take advantage of any remaining lifetime gift exclusion and lifetime GST exclusion
No transfer tax paid.
Future Generations

27. Dynasty Trusts $1 Million After-Tax Growth
Value of Dynasty Trust After 90 Years
Value of Property if No Trust
5.00%
$80,730,365
$29,062,927

28. Remainder to children and more remote descendants
SLATs
Grantor
SLAT
Assets
Spouse is trustee; and spouse and children have access to income and principal; spouse is primary beneficiary
Spouse and children
At spouse’s death
Remainder to children and more remote descendants

29. Non-Reciprocal SLATs
If 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 US
Gift splitting is generally unavailable with SLATs.

30. Non-Reciprocal SLATs
Different 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.

31. Non-Reciprocal SLATs
If 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.

32. GRATs GRAT Grantor (Age 70) Beneficiaries $1 million of Securities
______________________
End of Year 1
End of Year 2
GRAT Remainder
$117,672
$1 million of Securities
$520,156 of Securities
$520,156 of Securities
Actual Asset Transfer $1,000,000 Annuity Payments (Projected) $1,040,312 Remainder (Projected) $117,672
Taxable Gift $0.09
Assumed 10% growth
Assumed Section 7520 rate: 1%
$117,672 of Securities
Beneficiaries

33. IDGT Authorities
Sale to a grantor trust is disregarded for income tax purposes. Rev. Rul
Grantor’s payment of trust’s income taxes is not a gift. Rev. Rul
Power of substitution does not result in adverse estate tax consequences. IRC Sec. 675(4)(c) and Rev. Rul
Power of substitution over life insurance not an incident of ownership. Rev. Rul

34. Life Insurance Company
Sale / Loan to IDGT
1. Gifts $1M
5. Excess Cash Flow/Premiums
Grantor/ Insured
IDGT
Life Insurance Company
2. Sells/Loans $9M
6. Death Proceeds (Income and Estate Tax Free/Leverages GST Exemption)
3. $9M Note to Grantor Balloon Payment in 9 Years
4. $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.

35. Grantor Trust vs. Non-Grantor Trust
Year
Beginning Balance
Taxable Income 7%
Less: Taxes at 40%
Ending Balance 1
$10,000,000
$700,000
$(280,000)
$10,420,000 $
$10,700,000 2
10,420,000
729,400
(291,760)
10,857,640
10,700,000
749,000 -
11,449,000 3
760,035
(304,014)
11,313,661
801,430
12,250,430 4
791,956
(316,783)
11,788,835
857,530
13,107,960 5
825,218
(330,087)
12,283,966
917,557
14,025,517 6
859,878
(343,951)
12,799,892
981,786
15,007,304 7
895,992
(358,397)
13,337,488
1,050,511
16,057,815 8
933,624
(373,450)
13,897,662
1,124,047
17,181,862 9
972,836
(389,135)
14,481,364
1,202,730
18,384,592 10
1,013,695
(405,478)
15,089,581
1,286,921
19,671,514

36. IDGT 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.

37. Qualified Personal Residence Trusts
Grantor
QPRT
Rent-Free Right of Use of Residence for 15 Years
After Expiration of Selected Term of Years
ASSUMPTIONS:
Grantor’s Age 70
FMV of Residence $2,000,000
FMV in 15 years
at 5% growth $4,157,856 Term of QPRT 15 Years
Initial Gift $793,960
FET Savings (40%) $1,345,558
§7520 Rate for Jan. ‘13 1%
Grantor
Children or ILIT
Pays
RESULTS:
Rent

38. Impact of New Tax Act on Life Insurance
GRAT
Impact of New Tax Act on Life Insurance

39. Impact 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.

40. Impact 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.

41. Impact 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.

42. Impact 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.

43. Uses 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.

44. Uses 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.

45. THE END
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46. THE END
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