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Wait, I Did What?!?! Are You Second-Guessing Your ILIT?

Many Americans let out a sigh of relief when the American Taxpayer Relief Act of 2012 was finally signed into law. The signing of the act put an end to much of the uncertainty that previously surrounded estate planning where taxes are concerned. As a recent article explains, one consequence of this newfound certainty is that individuals who planned meticulously in order to avoid death taxes are now attempting to back-pedal .

One product that many individuals are now second-guessing is the Irrevocable Life Insurance Trust (“ILIT”). As the term “irrevocable” implies, ILITs are relatively inflexible. However, there are certain ways through which estate-planning attorneys can soften the terms of an ILIT.

Options such as adding a spousal access clause, adding a special trustee clause, or increasing the discretionary power of the trustee allow the trust creator to exercise more control over the trust. Some state governments have also attempted to make ILITs flexible by enacting “decanting” statutes that provide for the transfer of assets from an old ILIT to a new, less restrictive one.

If you would like to modify or revoke your ILIT, it is important to examine the originating documents carefully. Be sure to consider the legal, tax, financial, and insurance components of any planned adjustment. Importantly, any changes to your trust should comply with its terms and make financial sense.

 

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Plan to Avoid Inheritance Tax

Although taxes may be one of the items furthest from an individual’s mind when a close friend or family member passes away, a large amount of people will unfortunately face death tax issues at what is already an extraordinarily difficult time. A recent article discusses how individuals can plan their estates to shield their beneficiaries from this fate.

It is first important to understand how common tax issues are in estate planning and administration. According to chief fiduciary officer at Bank of the West in San Francisco, “One in 10 estates have some tax issues . . . There’s nothing worse than being in your worst grieving moments and having to deal with financial chaos.” There are a variety of state or federal taxes that may plague a family after a death.

In order to plan for and avoid these taxes, it is important to create an estate plan that takes them into account. One tax issue may be an unpaid federal or state tax liability. This often occurs when a person faces a long illness before his or her death and no one took charge to see that financial obligations were met. There may also be unforeseen federal or state taxes due. Although federal estate taxes don’t kick in until the estate is worth $5.25 million, some state estate taxes apply at much lower levels. For example, New Jersey’s estate taxes apply at $675,000 while New York’s estate taxes apply at $1 million.

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Double Your Estate Tax Exemption

When a person dies, not all of his or her estate will be subject to federal estate taxes. A base amount of his or her estate, an amount equal to or less than the federal estate tax exemption, will not trigger any federal estate tax liability. A recent article discusses how an individual may be able to double his or her federal estate tax provision to $10.5 million.

This estate-planning maneuver utilizes the portability provision. This provision, which is only available to married spouses, allows one spouse to transfer any unused portion of his or her federal estate tax exemption to the other. For example, if the first spouse to die has an unused estate tax exemption of $3 million, the surviving spouse can add that $3 million to his or her $5.25 million estate tax exemption to enjoy a total exemption of $8.25 million.

Therefore, if the first-to-die spouse does not utilize his or her $5.25 million exception amount, it may pass directly to the remaining spouse, giving him or her a federal estate tax exemption of $10.5 million. Portability is not automatic, however. If you would like to utilize this feature, you must timely file IRS Form 706. In order to be considered timely, this form must be completed within nine months of the first-to-die spouse’s death.

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Pass on the Bypass? Is a Bypass Trust Necessary?

Many people wonder whether bypass trusts are still necessary for asset protection. Even after the 2013 unified credit changes have been implemented for estate planning, making the transfer of assets between spouses easier, a recent article explains why bypass trusts may still be a good idea for certain estate plans.

One benefit of a bypass trust is that it protects assets from creditors and lawsuits. The provisions of a bypass trust that offer this protection depend on the state that the trust was created in and the state that the surviving spouse currently resides in.

Bypass trusts are also a good tool because they can transfer assets to more than one generation. A bypass trust can be set up to benefit the surviving spouse for the remainder of his or her life, then provide assets for his or her children and grandchildren. Bypass trusts can be written to include various other special benefits. These benefits can include professional management, provisions to limit spending, and provisions to avoid probate.

Finally, bypass trusts are helpful in avoiding estate taxes on appreciating assets. For example, imagine that a person put $5.25 million worth of assets in a bypass trust. Further, imagine that the $5.25 million grows to a value of over $10 million while in the trust. In this scenario, the entire $10 million will avoid estate taxes. As a result, bypass trusts may still be essential for particular estate plans.

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“It’s For Your Own Good! – Protecting Your IRA For & From Your Children”

One important asset that many people pass on to their beneficiaries is their Individual Retirement Account (“IRA”). For many people, it is important to protect their beneficiaries from immediately draining the IRA. A recent article discusses the new option of a Trusteed IRA, which helps to prevent this outcome.

A relatively new financial product, the Trusteed IRA is offered by several financial firms. Trusteed IRAs are marketed towards affluent investors who might otherwise put their IRA in a trust. Through a Trusteed IRA, the bank becomes trustee over the IRA assets. The bank then works with the beneficiary’s financial advisor in order to manage and distribute the assets.

If you are interested in a Trusteed IRA, be sure to discuss it with your CPA, financial advisor, and estate planning attorney. These members of your professional team should review the plan thoroughly and be comfortable with how the Trusteed IRA will be managed. A carelessly set up Trusteed IRA may impact an individual’s ability to utilize his or her estate tax marital deduction. The marital deduction, which is vital to many high net worth married couples, allows the estate of a deceased spouse to pass, tax free, to the surviving spouse.

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How’s This for GRAT-itude? – Basics of the GRAT

As a recent article explains, a Grantor Retained Annuity Trust (“GRAT”) is a great estate-planning tool for high-net-worth individuals.  This type of irrevocable trust permits you to make a lifetime gift of assets to an irrevocable trust in exchange for a fixed payment stream for a specified term of years.

Often, individuals making large transfers to their beneficiaries choose to utilize GRATs because of associated tax benefits.

A key aspect of GRAT transfers is that they minimize or even eliminate estate and gift tax liability on the transferred assets. Moreover, the creator of a GRAT may receive fixed annual payments for the life of the trust. Through receiving this annuity, the creator is paid back his or her principal, as well as interest. After the trust term has concluded, the remainder of the trust passes to the trust beneficiaries.

When setting up a GRAT, it is important to carefully select a trust term. If the trust term ends while the creator is still alive, the remaining assets will be included as part of his or her gross estate for purposes of determining estate tax liability. Those who anticipate outliving the trust term of their GRAT should consider employing a life insurance strategy to offset any additional tax liabilities.

Those who wish to set up a GRAT should act quickly because the Obama administration may soon eliminate the tax benefits that a GRAT strategy would reap as proposed in the President’s latest Green book proposals.

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Even the Wiseguys: Gandolfini’s Disastrous Estate Plan

After “Sopranos” actor James Gandolfini’s unexpected death at the age of 51, a recent article has described his estate plan as disastrous. Americans should take this opportunity to learn from the mistakes in Gandolfini’s estate plan in order to avoid making the same mistakes themselves.

James Gandolfini
James Gandolfini (Photo credit: Wikipedia)

According to the report, an estimated $30 million of Gandolfini’s $70 million estate will be paid out in taxes. There are many methods through which Americans can avoid a similar fate. These methods are all rooted in proper estate planning, which can dramatically reduce, or even eliminate, the tax burden on your estate.

One way to avoid a large tax bill is through the establishment of trust vehicles. Current federal law allows individuals to transfer $5.25 million into an irrevocable trust without having to pay gift tax on that amount. Married couples can combine their tax-free amounts to make a total of $10.5 million. The different types of trust accounts you may choose include marital trusts, life insurance trusts, and special needs trusts.

It is also important to update your estate plan as the size and characteristics of your estate and family change. Constant updates will also allow your estate to stay current with tax laws.

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For Better or Worse: Estate Planning for Same-Sex Spouses

As a recent article explains, the United States Supreme Court’s recent ruling on same-sex marriage will radically alter estate planning for same-sex married couples.

taking their first steps as a legally married ...
(Photo credit: ehoyer)

Prior to the decision, thousands of federal laws available to married couples were not available to same-sex married couples due to the Federal Defense of Marriage Act (“DOMA”), which defined marriage as between a man and a woman. By striking down DOMA, the United States Supreme Court suddenly made thousands of federal estate planning tools available to same-sex married couples.

One of these tools is portability. Portability allows a surviving spouse to utilize the unused portion of his or her deceased spouse’s estate tax exclusion. Portability was made permanent in the new 2012 tax law. In order to use the unused portion of your spouse’s estate tax exemption, the surviving spouse needs to have the executor of the deceased spouse’s estate transfer the unused exclusion, as this is not automatic.

Another estate planning maneuver that will now be available to same-sex married couples is gift-splitting. Every year, federal law allows each individual to gift $14,000 per year, per recipient, to as many recipients as they wish. Any amount gifted over the yearly gift-tax exclusion counts against a person’s lifetime gift tax exclusion. Married spouses, however, can combine their gift amount in order to jointly gift $28,000 to a single recipient.

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The Difference Between an LLP and LLC

In order to transfer assets to the next generation, some people may choose to use an LLP or LLC. Both of these are legal business arrangements that can be implemented into any estate plan.  A recent article discussed the differences between the two.

An LLP, or limited liability partnership, is a general partnership. In this type of partnership, ownership of the business is split between the partners. Profits from the business are distributed based upon the percentage ownership of each owner. An LLC, or limited liability company, is a partnership wherein owners are issued shares of stock. Profits from the business are split between the owners based on their share of the stock.

The use of an LLC or LLP may be beneficial for those Americans who have estates valued above the federal estate tax exemption, are seeking asset protection, or both. This is because these devices lower the value of the entire estate by dividing ownership of the business between yourself and your children. Moreover, if you gift a portion of your LLC or LLP to a child, that gift can be discounted by 20 percent or more for purposes of the federal gift tax exemption. By giving such gifts, you increase the value of your allowed $14,000 gift by 20 percent.

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RUN FOR SHELTER!!! Or Don’t? Is a Credit Shelter Trust Still Necessary?

Before the statutory portability provisions were made permanent, people often used Credit Shelter Trusts (“CSTs”) in order to maximize the estate tax exemption of the first spouse to die. The use of CSTs therefore reduces the estate tax on the entire marital estate. As a recent article discusses, however, the need of CSTs has been called into question after portability was made permanent.

The portability provision automatically allows married couples to utilize their combined exemption amount. In 2013, this exemption amount was $10.5 million. For high net-worth families, however, a CST is still a beneficial estate planning tool for saving estate taxes.

It is important to understand that, under portability, a deceased spouse’s exemption freezes at the time of his or her death. Therefore, if the first spouse dies many years before the second spouse dies, he or she could miss significant estate tax savings. CSTs are also beneficial for appreciable assets. The value of any assets placed in a CST is frozen at the time of the spouse’s death. Therefore, if the assets were worth $1 million at the time of the spouse’s death, and $5 million when the surviving spouse dies, all $5 million would be excluded from the estate of the surviving spouse.

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Don’t Forget About State Estate Taxes

With the federal estate tax exemption set at $5.25 million, many people are resting easy knowing that their estate will likely not be subject to estate taxes. As a recent article points out, however, many individuals are quick to forget that their state may levy estate taxes, as well.

Currently, some type of death tax is imposed in 21 states, as well as the District of Columbia. Most of these taxes are applicable at a much lower rate than that at the federal level. New Jersey, for example, taxes estates that are worth over $675,000. In Rhode Island, estates are taxed when they are worth over $910,725. Finally, New York taxes estates that are worth an excess of $1 million.

English: The stone mansion at Deering Estate a...
(Photo credit: Wikipedia)

When considering whether state estate taxes will apply to your estate, remember to include the value of your home and retirement accounts. Depending on the specifics of your life insurance policy, the proceeds of this policy may be counted as well.

To further complicate matters, eight states – including New Jersey – impose inheritance taxes as well as estate taxes. Often, seniors consider state death taxes when determining which state they would like to retire in. Many senior citizens choose to retire in Florida, Arizona, and Texas, because these three states do not impose estate or inheritance taxes.

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Advantages Of An Irrevocable Life Insurance Trust

Many Americans may be unaware of what an irrevocable life insurance trust (“ILIT”) is, let alone the benefits it may provide to them. A recent article discusses several of the benefits offered by ILITs.

Typically, life insurance policy proceeds are not subject to income taxation. However, they are included in the calculation of a person’s gross taxable estate. This is where the ILIT comes in. If a person puts their life insurance policy into an ILIT, the proceeds of the policy are kept out of his or her taxable estate. The proceeds will therefore be available to his or her heirs free of income and estate tax.

Additionally, ILITs are a great way to provide cash to help pay for the taxes that will be levied on your estate. Beneficiaries of your ILIT can use some of the proceeds to pay the taxes owed on your estate. By doing this, your actual estate is kept in tact. This strategy is especially beneficial to those whose estate consists largely of illiquid assets such as a business or real estate. Through setting up an ILIT, you can ensure that your family will not have to sell the illiquid assets in your estate in order to satisfy the estate taxes.

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Estate Planning Oversight Will Cost Koch Estate 3 Million Dollars

After the death of New York City legend Ed Koch on February 1st, 2013, his estate plan became the topic of public conversation. A recent article discussing the plan suggests that he could have saved his estate 3 million dollars in taxes had he set up an irrevocable trust.

Edward I. Koch, mayor of New York City, sports a sailor’s cap at the commissioning ceremony for the guided missile cruiser USS LAKE CHAMPLAIN (CG 57). Location: NEW YORK, NEW YORK (NY) UNITED STATES OF AMERICA (USA) (Photo credit: Wikipedia)

Koch drafted his final estate plan in 2007. Through his will, he directed that his 10 million dollar estate be distributed mainly between his sister, three sons, and secretary of 40 years. His estate plan did not utilize any type of irrevocable trust in order to facilitate these distributions. According to Managing Director of Estate Street Partners, LLC, Rocco Beatrice, using such a trust could have eliminated the entire estate tax bill of 3 million.

Koch’s estate will be required to pay New York state taxes of 16% on the amount by which it exceeds $1 million, as well as federal estate tax of 40% on the amount by which the estate exceeds $5.25 million. Assuming his estate is worth $10 million, these taxes would amount to $1.44 million and $1.90 million, respectively.

According to Beatrice, “That is a lot of money in taxes which could have easily been avoided.” Beatrice explained that, had Koch set up irrevocable trusts, the $3 million could have gone to his family, rather than the government.

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Why Everyone Needs An Estate Plan

With the current estate tax exemption over $5 million – $5.25 million to be exact – many people wonder if estate planning is necessary for them. As a recent article points out, the answer is yes.

Estate taxes are only one of a myriad of reasons why a person should put together an estate plan. The main reason for which people create estate plans is so that they can be sure that their assets will be distributed according to their wishes. No matter if you are very wealthy, or have a modest estate, an estate plan is vital if you wish to direct the distribution of your assets. Moreover, by providing instructions for an orderly distribution of your assets, you can save your heirs from the infighting that often results.

It is also important to draft a valid will if you wish to avoid probate. Many people falsely believe that if their estate is not subject to estate taxes, it is not subject to probate. This, however, is not the case. If you would not like your estate to go through the process of probate, you must put together an estate plan that utilizes various estate planning tools that will transfer the bulk of your estate outside of probate.

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Insurance Considerations When Transferring An Asset To A Trust or LLC

Two popular and time-tested methods of wealth transfer are the trust account and limited liability company. While both of these options can provide an excellent vehicle for the transfer of assets, it is important that the creator consider all the related details. One such detail that must be addressed is insurance.

Without addressing insurance considerations while forming a trust or limited liability company, a person may face an unexpected and catastrophic loss of insurance coverage. All insurance policies, no matter what type, are written to provide the owner or titleholder of an asset with coverage. Problems may occur, therefore, when assets are transferred to a trust or LLC.

For example, a person may transfer ownership in their home to a trust fund, LLC for various reasons including estate planning, tax considerations, or protection from creditors. Upon making such a transfer, the homeowner must be sure to change the homeowner’s insurance policy to reflect the fact that the home is now owned by the trust or LLC. Should the previous homeowner fail to make this change and the home is damaged, the insurance company may question the ownership change. Without making the appropriate changes, therefore, a homeowner could become potentially liable to pay any arising damages out-of-pocket.

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A Permanent Estate Tax For The Wealthy

After nearly a decade in flux, there is finally a permanent federal estate tax. In 2013, however, a mere 3,800 estates will be required to pay the tax. Moreover, the total amount paid by this small number of estates will only amount to $14 billion, which is a mere half of the total revenue from five years ago.

Prior to passage of the American Taxpayer Relief Act of 2012 (ATRA), the federal estate tax was in a state of constant flux. In 2001, the effective exemption was $675,000. The exemption amount jumped to $3.5 million in 2009. The ATRA has created the first permanent estate and gift tax in over a decade. As a result of this, wealthy Americans will be able to spend less time arranging gifts in anticipation of changing laws.

With the current exemption of $5.25 million, most estates – approximately 99.9 percent – will pass to beneficiaries tax-free. Large estates, however, now face a significant tax bill. For example, a $100 million estate will have to shell out approximately $5 million more in federal taxes.

As Forbes explains, the most important part of the ATRA is not the details of the taxes, but the fact that Congress has made the tax permanent. Although wealthy families are still likely to hire estate planning attorneys and financial advisors to create personalized estates that avoid taxes, the professionals that they hire will not have to face the challenges of a constantly changing rate.

 

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Pitfalls of Joint Ownership

One popular estate tax avoidance device is joint ownership of property between generations. Unfortunately, this device often leads to an ugly and expensive family feud. An article in Forbes discusses common pitfalls to be wary of when considering joint ownership between generations.

When you become a joint owner with another person, you become vulnerable to their creditors. Due to the very nature of joint ownership, one owner’s creditors can attempt to satisfy their claim through some or all of the shared assets. Similarly, if the spouse of one joint owner files for divorce, he or she may claim that the joint assets are part of the marital estate.

Another common pitfall arises when a joint owner decides to borrow from a joint asset, because joint owners can borrow from such assets without getting permission from the other. Finally, once you pass away, there is nothing requiring the joint owner to share the assets with other heirs unless they file a lawsuit to enforce the joint owner’s intent. Such lawsuits often end in bitter family court disputes.

If you are considering joint ownership as part of your estate plan, it is important to speak with an estate planning attorney about these and other pitfalls.

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Using a Flexible Irrevocable Life Insurance Trust to Shelter Life-Insurance Proceeds

Many people do not realize that life insurance proceeds are in fact taxed. Although these proceeds escape income taxes, they ARE  counted as part of your taxable estate. An article in The Wall Street Journal discusses one way to shelter such proceeds from estate taxes, the Irrevocable Life Insurance Trust.

In order to avoid such tax consequences, you may choose to transfer ownership of your existing life insurance policy to an Irrevocable Life Insurance Trust (“ILIT”). By transferring such ownership, the ILIT is removed from your estate. Once established, an ILIT also allows you to split death benefits among several beneficiaries any way you wish. You also retain the power to decide how and when the benefits will be distributed to your heirs.

If you believe that an ILIT is right for you, you should act sooner, rather than later. Existing policies transferred to ILITs are subject to a three-year look-back period, meaning that if you die within three years of its creation, your life insurance proceeds will revert back to your name and be included within your taxable estate (Although this is not the case for new policies purchased directly by the life insurance trust.

An ILIT is usually used for life insurance policies that were set up for the sole benefit of the heirs. If you need to own or access your life insurance policy at anytime, an ILIT may still be a good solution for you, but it must be drafted with that goal in mind.

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What is a Family Limited Partnership (or Family Limited Liability Company)?

There are many sophisticated estate planning strategies available to affluent families to ensure that the majority of their hard earned money stays within the family, rather than in the hands of the IRS and state taxing authorities. One such device is the Family Limited Partnership (“FLP”) or Family Limited Liability Company (“FLLC”.) FLPs & FLLCs are advantageous because they provide estate tax savings, gift tax savings, and asset protection.

A FLP or FLLC may own a variety of things, such as real estate or shares on your company. In order to retain control over the assets, you may choose to be the general partner or managing member. That way you can comfortably give your children a majority of the equity in the FLP/FLLC while maintaining control yourself.

By gifting limited partnership/membership interests to trusts or directly to members of your family, you reduce your taxable estate. Consequently, the amount of any applicable estate tax that your heirs will have to pay upon your death will be reduced by the ownership interest you gave away. Such gifts also apply for the annual gift tax exclusion.

As an article in Forbes points out, FLPs require not only good planning but good execution as well. Many times an FLP fails not because of a faulty set-up, but because of a poorly carried out transaction. The same can be said of FLLCs. It is therefore vital to coordinate between those who create your Family Entity, and those who will be working with it, such as accountants, to avoid problems.

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Cutting the Estate Tax Burden for Private Company Owners

Owners of private companies often hope that the business they have built will benefit their families in the long term. No matter whether you plan to benefit your loved ones by selling the business upon your death and providing them with the proceeds, or passing the business itself on, there are certain steps you can take now that will minimize the tax burden when your business eventually changes hands. An article in the Financial Post details some of these steps.

One of these steps is to provide for charitable donations in your will. Such donations are treated as gifts made in your last year of life, and therefore provide a credit on your final tax return. In the year of and immediately preceding your death, the charitable donation limit is 100%, rather than 75% in all other years.

There are also a multitude of trust arrangements you can set up in your will  (testamentary trusts) as a tax-effective way to transfer business assets to your families. Testamentary trusts pay income tax at graduated rates as though it were an individual. Therefore, by creating a “new taxpayer” through the trust, you may provide your family with an annual tax savings. Moreover, your spouse will not have to pay capital gains tax on assets transferred from your will to a spousal trust.