Estate Planning Strategies
• Marital Deduction - unlimited
• Maximizing effect of unified gift-estate tax credit
• Reduce estate by gifts prior to death
The Martial Deduction
• Marital deduction applies only to the part of the estate that actually passes to the spouse.
• If a person dies "intestate" the estate is distributed according to laws in the state in which the person lived.
− In many states, a spouse receives 1/3 and 2/3 is divided equally among the children. − This distribution deprives the estate of the full benefit of the marital deduction.
• Taking advantage of the marital deduction may require specific provisions in the will.
Maximizing the Effect of Unified Gift-Estate Tax Credit
• Although the unlimited marital deduction will protect an entire estate from the federal estate tax, the spouse’s estate (including amounts received from the first partner to die) will be subject to the federal estate tax.
− Property left to a surviving spouse becomes a part of the spouse's estate and will be taxed without marital deduction when he or she dies.
− Strategy: arrange for the distribution of that estate in a manner that will maximize the use of the unified estate-gift tax credit.
Example
• Bill Smith has an estate of about $3 million.
− If he leaves his entire estate to Mary, it will pass without estate tax liability, but the tax is merely deferred.
− If Bill dies in 2008, $2 million of his estate could pass to children or other heirs without tax liability.
− The remaining $1 million may pass to Mary, or it may pass to the children or other heirs subject to the estate tax.
Gifts
• In addition to using the marital exemption and maximizing the unified credit, a third strategy is by making gifts prior to death.
− Annual gift tax exclusion, whereby assets may be transferred during one’s lifetime without tax consequences.
− Originally $10,000 per donee annually, the exclusion is adjusted for inflation in increments of $1000 since 1998.
− By 2007, it had increased to $12,000.
Trusts
• A common tool for implementing estate planning strategies and for administration of an estate.
− Arrangement under which the holder (trustee) undertakes the management of another's property (called the corpus of the trust), for benefit of designated persons.
− The most widely used trusts are
• the testamentary trust, which is a part of the will and takes effect after death, and
• the living or inter vivos trust, established during lifetime may be revocable or irrevocable in nature.
Testamentary Trust
• Will not reduce estate taxes at testator’s death, nor will it reduce estate settlement costs.
− Trust property remains in estate of testator until distribution after will is probated.
− Used to leave property to heirs other than a spouse (to maximize tax credit), but also provides for a surviving spouse.
• The spouse is the beneficiary of the trust;
• other heirs are remaindermen.
• Property in trust uses all or part of unified credit.
Living (Intervivos) Trusts
Revocable inter vivos trust
The creator reserves the right to terminate the trust and acquire the property.
The revocable trust does not reduce the estate tax liability.
Irrevocable inter vivos trust.
The creator relinquishes right to terminate the trust and acquire the property.
An absolute and irrevocable trust takes the property out of the grantor's estate.
Irrevocable Life Insurance Trust
Irrevocable Life Insurance Trust (ILIT) is used to avoid the incidents of ownership in a life insurance contract.
− Life insurance is purchased and managed by a trustee, subject to a life insurance trust agreement.
− Premiums are paid from funds transferred to the trust as gifts but not withdrawn by trust beneficiaries. (Crummey powers)
− Key feature is willingness of beneficiaries to not withdraw the gift, which they must have the right to do if it is to qualify as a gift.