How can young, affluent people plan their estates when the tax landscape may look dramatically different 20, 30 or 40 years from now? Today, the current gift and estate tax exemption is high and the estate tax rate slightly higher than the income tax rate — but that could change in the future, requiring a shift in strategy. The answer for young people is to take a flexible approach that allows them to hedge their bets. This article explains how a carefully designed trust can achieve this purpose.
Estate planning for the young and affluent
How to hedge your bets
Events of the last decade have taught us that taxes are anything but certain. So how can young, affluent people plan their estates when the tax landscape may look dramatically different 20, 30 or 40 years from now? The answer is by taking a flexible approach that allows you to hedge your bets.
Conflicting strategies
Many traditional estate planning techniques evolved during a time when the gift and estate tax exemption was relatively low and the top estate tax rate was substantially higher than the top income tax rate. Under those circumstances, it usually made sense to remove assets from the estate early — through various trust and gifting strategies — to shield future asset appreciation from estate taxes.
Such lifetime asset transfers could result in higher income taxes for heirs. But in most cases, the estate tax benefits outweighed the income tax disadvantages.
Today, the exemption has climbed to $5.34 million and the top gift and estate tax rate (40%) is roughly the same as the top income tax rate (39.6%). If your estate’s worth is within the exemption amount, estate tax isn’t a concern and there’s no gift and estate tax benefit to making lifetime gifts.
But there’s a big income tax advantage to keeping assets in your estate: The basis of assets transferred at your death is stepped up to their current fair market value, so beneficiaries can turn around and sell them without generating capital gains tax liability. Assets you transfer by gift, however, retain your basis, so beneficiaries who sell appreciated assets face a significant tax bill.
Unpredictable future
For young people, designing an estate plan is a challenge because it’s difficult to predict what the estate and income tax laws will look like — and what their own net worth will be — decades from now. If you believe that the value of your estate will remain lower than the exemption amount, then it may make sense to hold on to your assets and transfer them at death so your children or other heirs can enjoy the income tax benefits of a stepped-up basis.
But what if your wealth grows beyond the exemption amount so that estate taxes become a concern again? What if Congress decides to reduce the exemption amount? If that happens, removing assets from your estate as early as possible is the better tax strategy. But by the time circumstances have changed, it may be too late to adopt that strategy.
Building flexibility into your plan
A carefully designed trust can make it possible to remove assets from your estate now, while giving the trustee the authority to force the assets back into your estate if that turns out to be the better strategy. This allows you to shield decades of appreciation from estate tax while retaining the option to include the assets in your estate should income tax savings become a priority.
For the technique to work, the trust must be irrevocable, the grantor must retain no control over the trust assets (including the ability to remove and replace the trustee) and the trustee should have absolute discretion over distributions. In the event that estate inclusion becomes desirable, the trustee should have the authority to cause such inclusion by, for example, naming the grantor (you) as successor trustee or giving the grantor a general power of appointment over the trust assets.
In determining whether to exercise this option, the trustee should consider several factors, including potential estate tax liability, if any, the beneficiaries’ potential liability for federal and state capital gains taxes, and whether the beneficiaries plan to sell or hold onto the assets.
Consider the risk
This trust type offers welcome flexibility, but it’s not risk-free. If you die unexpectedly, you may lose the opportunity to include the trust assets in your estate. Be sure to consider this risk as you determine whether this strategy is right for you.
© 2014
