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) 457-7200 jhg@disinherit-irs.com www.disinherit-irs.com

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

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.

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.

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.

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. 2011-28).

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

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?

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.

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.

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.

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.

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.

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

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

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.

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.

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).

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.

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.

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.

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

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).

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

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. 2503 does not apply. No transfer-for-value if new ILIT is grantor trust. Rev. Rul. 2007-13. No gain on sale if old ILIT is a grantor trust (or if no gain in policy).

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

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

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

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 316 1969. Gift splitting is generally unavailable with SLATs.

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.

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 2008-21 2008, gifts of partnership interests 6 days and 11 days, respectively, after the formation of the partnership were ruled not to be step transactions.

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

IDGT Authorities Sale to a grantor trust is disregarded for income tax purposes. Rev. Rul. 85-13. Grantor’s payment of trust’s income taxes is not a gift. Rev. Rul. 2004-64. Power of substitution does not result in adverse estate tax consequences. IRC Sec. 675(4)(c) and Rev. Rul. 2008-22. Power of substitution over life insurance not an incident of ownership. Rev. Rul. 2011-28.

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.

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

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.

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

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

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.

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.

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.

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.

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.

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.

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