King & Wood, P.A.

Can You Gift Money on Your Deathbed?

“One sure-fire way your clients can reduce the size of their taxable estate is to give gifts to loved ones while they’re still alive. But when are ‘deathbed gifts’ considered to be complete for estate and gift tax purposes?”

A new case out of Tax Court centers on the question of when a “deathbed gift” is considered acceptable for estate and gift tax purposes. The powerful tax law provisions used to help many taxpayers avoid federal estate tax, or reduce it to a manageable size, makes this an important decision, especially as we draw closer to a time when estate tax exemption is likely to return to a far lower number.

The two tax law provisions, described in the article “Tax Court Says When Deathbed Gifts Are Complete” from accounting WEB, are the following:

Annual gift tax exclusion. A taxpayer may give gifts to recipients under the annual gift tax exclusion without incurring any gift taxes. The exclusion, indexed for inflation in $1,000 increments, is $16,000 per recipient in 2022. It’s doubled to $32,000 for joint gifts made by a married couple. Estates can be reduced significantly with planned use of the annual gift tax exclusion. For instance, if a taxpayer and a spouse give the maximum $16,000 to five relatives for five years in a row, they will have transferred $800,000 ($32,000 x 5 x 5) out of their estate, free of taxes.

Unified estate and gift tax exemption. In addition to the annual gift exemption, gifts may be sheltered from tax by the unified estate and gift tax exemption. As of this writing, the exemption is $10 million, indexed for inflation, which brings it to $12.06 million in 2022. It is scheduled to drop to $5 million, plus inflation indexing, in 2026.

Using the exemption during the taxpayer’s lifetime reduces the available estate shelter upon death. These two provisions give even very wealthy taxpayers a great deal of flexibility regarding liquid assets.

The new case came about as a result of a resident of Pennsylvania, who executed a Power of Attorney (POA) in 2007, appointing his son as his agent. The son was authorized to give gifts in amounts not exceeding the annual gift tax exclusion. From 2007 to 2014, the son arranged annual gifts to his siblings and other family members, in accordance with the POA.

The father’s health began to fail in 2015 and he passed away on September 11. On September 6, five days before he died, the son wrote eleven checks, totaling $464,000 from the father’s investment account.

Some recipients deposited the checks before the decedent’s death, but others did not. Only one check was paid by the investment account before the decedent’s death.

The question before the Tax Court: are the gifts complete and removed from the decedent’s estate?

According to the IRS, any checks deposited before death should be excluded from the taxable estate, but the Tax Court looked to the state’s law to determine the outcome of the other checks. The Tax Court ruled the checks not deposited in time must be included in the decedent’s taxable estate.

The estate planning lesson to be learned? Timing matters. If checks are written as part of the plan to minimize taxes, they must be deposited promptly to ensure they will be considered as gifts and reduce the taxable estate.

Reference: accounting WEB (Aug. 26,2022)

What are Benefits of Putting Money into a Trust?

“Grantor retained annuity trusts, intentionally defective grantor trusts, spousal lifetime access trusts, oh my! If you overhear two estate planning attorneys at a coffee shop, it would not be unreasonable to think that all clients have estate plans filled with trusts.”

For the average person, knowing how a revocable trust, irrevocable trust and testamentary trust work will help you start thinking of how a trust might help achieve your estate planning goals. A recent article from The Street, “3 Powerful Types of Trusts that Can Work for You,” provides a good foundation.

The Revocable Trust is one of the more flexible trusts. The person who creates the trust can change anything about the trust at any time. You may add or remove assets, beneficiaries or sell property owned by the trust. Most people who create these trusts, grantors, name themselves as the trustee, allowing themselves to use their property, even though it is owned in the trust.

A Revocable Trust needs to have a successor trustee to manage the assets in the trust for when the grantor dies or becomes incapacitated. The transfer of ownership of the trust and its assets from the grantor to the successor trustee is a way to protect assets in case of disability.

At death, a revocable trust becomes an Irrevocable Trust, which cannot be easily revoked or changed. The successor trustee follows the instructions in the trust document to manage assets and distribute assets.

The revocable trust provides flexibility. However, assets in a revocable trust are considered part of the taxable estate, which means they are subject to estate taxes (both federal and state) when the owner dies. A revocable trust does not offer any protection against creditors, nor will it shield assets from lawsuits.

If the revocable trust’s owner has any debts or legal settlements when they die, the court could award funds from the value of the trust and beneficiaries will only receive what’s left.

A Testamentary Trust is a trust created in connection with instructions contained in a last will and testament. A good example is a trust for a child outlining when assets will be distributed to them by the trustee and for what purposes the trustee is permitted to make the distribution. Funds in this kind of trust are usually used for health, education, maintenance and supports, often referred to as “HEMS.”

For families with relatively modest estates, a trust can be a valuable tool to protect children’s futures. Assets held in trust for the lifetime of a child are protected in the event of the child’s going through a divorce because the child’s inheritance is not subject to equitable distribution when not comingled.

Many people buy life insurance for their families, but they don’t always know that proceeds from the life insurance policy may be subject to estate taxes. An insurance trust, known as an ILIT (Irrevocable Life Insurance Trust) is a smart way to remove life insurance from your taxable estate.

Whether you can have an ILIT depends on policy ownership at the time of the insured’s death. In most cases, the insurance trust must be the owner and the insurance trust must be named as the beneficiary. If the trust is not drafted before the application for and purchase of the life insurance policy, it may be possible to transfer an existing policy to the trust. However, if this is done after the purchase, there may be some challenges and requirements. The owner must live more than three years after the transfer for the policy proceeds to be removed from the taxable estate.

Trusts may seem complex and overwhelming. However, an estate planning attorney will draft them properly and make sure that they are used appropriately to protect your assets and your family.

Reference: The Street (May 13, 2022) “3 Powerful Types of Trusts that Can Work for You”

How Does an Inherited IRA or 401(k) Work?

“So, you inherited a retirement account. Before you make any decisions on when and how to access the money, it’s worth familiarizing yourself with the rules that apply to different beneficiaries.”

The rules for inheriting retirement assets are complicated—just as complicated as the rules for having 401(k)s and IRA to begin with. Mistakes can be hard to undo, warns the article “Here’s how to handle the complicated rules for an inherited 401(k) or IRA” from CNBC.

The 2019 Secure Act changed how inherited tax deferred assets are treated after the original owner’s death. The options depend upon the relationship between the owner and the heir. The ability to stretch out distributions across the heir’s lifetime if the owner died on or after January 1, 2020 ended for most heirs. Exceptions are the spouse, certain disabled beneficiaries, or minor children of the decedent. Otherwise, those accounts must be depleted within ten years.

Non-spouses with flexibility include minor children. That’s all well and fine, but once the minor child turns 18 (in most states), the 10-year rule kicks in and the individual has 10 years to empty the account. Before that time, the minor child must take annual required minimum distributions (RMDs) based on their own life expectancy.

These required withdrawals typically begin when a retiree reaches age 72, and the amount is based on the account owner’s anticipated lifespan.

Beneficiaries who are chronically ill or disabled, or who are not more than ten years younger than the decedent, may take distributions based on their own life expectancy. They are not subject to the ten- year rule.

Beneficiaries subject to that ten-year depletion rule should create a strategy, including creating an Inherited IRA and transferring the funds to it. If the inherited account is a Roth or a traditional IRA, the process is slightly different. Distributions from a Roth IRA are generally tax-free, and traditional IRA distributions are taxed when withdrawals occur. One point about Roths—if you inherit a Roth that’s less than five years old, any earnings withdrawn will be subject to taxes, but the contributed after-tax amounts remain tax-free.

If an heir ends up with a retirement account via an estate, versus being the named beneficiary on the account, the account must be depleted within five years, if the original owner had not started taking RMDs. If RMDs were underway, the heir would need to keep those withdrawals going as if the original owner continued to live.

For spouses, there are more options. First, roll the money into your own IRA and follow the standard RMD rules. At age 72, start taking required withdrawals based on your own life expectancy. If you don’t need the income, you can leave the money in the account, where it can continue to grow. However, if you are not yet age 59½, you may be subject to a 10% early withdrawal penalty if you take money from the account. In that case, put the money into an Inherited IRA account, with yourself as the beneficiary.

IRAs and 401(k)s are complicated. Speak with your estate planning attorney to make an informed decision when creating an estate plan, so your inherited assets will work with, not against, your overall strategy.

Reference: CNBC (April 11, 2021) “Here’s how to handle the complicated rules for an inherited 401(k) or IRA”

Will Inheritance and Gift Tax Exemptions Change in 2021?

“The increase in the exemption is set to lapse after 2025. However, the Treasury Department and the IRS issued “grandfather” regulations in 2019 allowing the increased exemption to apply to gifts made while it was in effect, if Congress lowers the exemption after those gifts.”

The federal estate and gift tax exemption is applied to the sum total of a person’s taxable gifts during life and the assets they leave behind at death. In 2017, Congress doubled the exemption, starting in 2018. That number continues to rise with inflation until 2025, unless the laws are changed. According to the article “Estate and Gift Taxes 2021—2022: Here’s What You Need to Know” from The Wall Street Journal, the 2017 expansion cut the number of taxable estates from about 8,000 to about 3,000 in 2019.

Gift Tax Exemptions. In 2020, the exemption was $11.58 million per individual ($23.16 million per married couple). An inflation adjustment increased this amount to $11.7 million per person and $23.4 million per couple. For 2020 and 2021, the top estate-tax rate is 40%.

That increase is set to end in 2025, but both the Treasury Department and the IRS issued regulations in 2019 allowing the increased exemption to apply to gifts made while this increase is in effect, even if Congress lowers the exemption after those gifts were made.

Capital Gains After Death. Under current law, investments owned at the time of death are not subject to capital gains taxes. This is referred to as a “step-up in basis.” Congress and the Biden administration are now considering reducing or eliminating this benefit as a means of raising revenue.

Annual Gift Tax Exemptions. In 2020 and 2021, the annual gift-tax exclusion is $15,000 for each individual donor, for each individual recipient. You can give anyone up to $15,000 in assets per year and not owe any federal gift taxes. A generous couple with two married children and six grandchildren may give away $300,000 to their ten descendants. The couple could also give $30,000 to as many other people as they want, friends or family members or perfect strangers.

Above the $15,000 per donor, per recipient, gifts are subtracted from the lifetime gift and estate-tax exemption. Annual gifts are not deductible for income tax purposes and they are not considered income for the recipient. If the gift is not cash, the giver’s “cost basis” does carry over to the recipient.

Other Tax-Free Gifts. Another way to make a gift is to pay educational or health expenses for another person. The payment must go directly from the person giving the gift to the college, private school, or medical provider on behalf of another person. Otherwise, it will not have any tax benefit for the person giving the gift.

While a generous gift is always welcome, making a gift that is part of a holistic estate plan benefits you and your recipients. Speak with an experienced estate planning attorney about the role of gifting in your overall estate plan.

Reference: The Wall Street Journal (April 8, 2021) “Estate and Gift Taxes 2021—2022: Here’s What You Need to Know”

Can a Charity Be a Beneficiary of an Estate?

“Ever since a group of philanthropists created the Giving Pledge in 2010, taxpayers have expressed greater interest in potential estate planning strategies that would allow them to leave a significant portion of their assets to charity upon their death.”

The interest in charitable giving increased in 2020 for two reasons. One was a dramatic increase in need as a result of the COVID pandemic, reports The Tax Advisor’s article “Charitable income tax deductions for trusts and estates.” The other was more pragmatic from a tax planning perspective. The CARES Act increased the amounts of charitable contributions that may be deducted from taxes by individuals and corporations.

What if a person wishes to make a donation from the assets that are held in trust? Is that still an income tax deduction? It depends.

The rules for donations from trusts are substantially different than those for charitable contribution deductions for individuals and corporations. The IRS code allows an estate or nongrantor trust to make a deduction which, if pursuant to the terms of the governing instrument, is paid for a purpose specified in Section 170(c). For trusts created on or before October 9, 1969, the IRS code expands the scope of the deduction to allow for a deduction of the gross income set aside permanently for charitable purposes.

If the trust or estate allows for payments to be made for charity, then donations from a trust are allowed and may be tax deductions. Otherwise, they cannot be deducted.

If the trust or estate allows distributions for charity, the type of asset contributed and how it was acquired by the trust or estate determines whether a tax deduction for a charitable donation is permitted. Here are some basic rules, but every situation is different and requires the guidance of an experienced estate planning attorney.

Cash donations. A trust or estate making cash donations may deduct to the extent of the lesser of the taxable income for the year or the amount of the contribution.

Noncash assets purchased by the trust/estate: If the trust or estate purchased marketable securities with income, the cost basis of the asset is considered the amount contributed from gross income. The trust or estate cannot avoid recognizing capital gain on a noncash asset that is donated, while also deducting the full value of the asset contributed. The trust or estate’s deduction is limited to the asset’s cost basis.

Noncash assets contributed to the trust/estate: If the trust or estate acquired an asset it wants to donate to charity as part of the funding of the fiduciary arrangement, no charity deduction is permitted. The asset that is part of the trust or estate’s corpus, the principal of the estate, is not gross income.

The order of charitable deductions, compared to distribution deductions, can cause a great deal of complexity in tax planning and reporting. Required distributions to noncharitable beneficiaries must be accounted for first, and the charitable deduction is not taken into account in calculating distributable net income. The recipients of the distributions do not get the benefit of the deduction. The trust or the estate does.

Charitable distributions are considered next, which may offset any remaining taxable income. Last are discretionary distributions to noncharitable beneficiaries, so these beneficiaries may receive the largest benefit from any charitable deduction.

If the trust claims a charitable deduction, it must file form 1041A for the relevant tax year, unless it meets any of the exceptions noted in the instructions in the form.

These are complex estate and tax matters, requiring the guidance of an experienced estate planning attorney for optimal results.

Reference: The Tax Advisor (March 1, 2021) “Charitable income tax deductions for trusts and estates”

Should Inherited Money Be Equally Split Between Family Members

“When you’re planning to divide your estate unequally, explain the reasons to your heirs, and remember: They might be hurt anyway.”

Leaving an equal amount to adult children works for many families, but equal is not always equitable. In those cases, leaving different amounts to heirs can lead to irreparable breaks within the family. A recent article titled “The Unequal Inheritance: It Can Work, or It Can ‘Destroy Relationships’” from The New York Times examines the problem and some of the solutions. There are times, however, when even the fairest of decisions doesn’t heal the “Mom always liked you best” hurt, imagined or otherwise.

Unequal inheritances can trigger sibling fighting after a parent dies, some of which end up in court, especially if one child thinks that a parent was being overly influenced by the sibling who ended up with the bigger inheritance.

Parents need to explain their decision to each child, individually and as a group, or even seek mediation. Many estate planning attorneys encourage a family meeting, where everyone is in a neutral location, to discuss the parent’s wishes and estate plan. In some cases, the children understand when one of the siblings is disabled or has a lower earning potential.

Another reason for unequal inheritances is to balance things out when one child received significant support that others did not need. Equalization of gifts can be documented in an estate plan, as heirs may need to be reminded of the parent’s generosity at an earlier date. If this isn’t addressed, the siblings who received less help during the parent’s lifetime may resent their decision to give equally.

What about the caregiving child? Some parents decide to give extra to the adult child who became their primary caregiver. That usually takes the shape of the family home, a larger cash distribution or life insurance proceeds. However, siblings don’t always agree on how this is handled. Some will see the child’s decision to care for their parents as manipulative.

Blended families with stepchildren run into complications often. The growth in stepfamilies is a big part of why Americans 50 and older left their children unequal bequests, which more than doubled from 16 percent in 1995 to 35 percent in 2010, as reported in a study from the National Bureau of Economic Research.

At the same time, the study also found that the longer the relationship, the more likely the parent would leave stepchildren inheritances equal to that of a biological or adopted child.

Even when parents intend to split the estate equally, failing to plan for taxes can leave children with different inheritances. This happens when parents leave different types of assets to different heirs.

If a parent left a $500,000 IRA to one child and a $500,000 taxable brokerage account to another, the child who received the IRA will pay federal income taxes up to 37 percent on every withdrawal, which now must be done within ten years of the death of the parent. The child with the brokerage account would have to pay a long-term capital gains tax of up to 20 percent, when an appreciated asset was sold.

Generally speaking, IRA and other tax deferred accounts should have all children as equal beneficiaries. These accounts are usually outside of the probate estate. A house may be left in a trust or the will, with directions for the house to be sold and all assets divided equally.

There is no way around it—inheritances are seen as a proxy for love, and any unequal distribution will be felt as such, even by the most rational of people. Speak with your estate planning attorney to learn how to avoid these scenarios and consider holding a family meeting to make sure your intentions and the reasons behind your intentions are made clear to all concerned.

Reference: The New York Times (Feb. 19, 2021) “The Unequal Inheritance: It Can Work, or It Can ‘Destroy Relationships’”

 

Searching for Lower Taxes? Check State Laws

“Some states are great to live in, but not so great to die in.”

If you are among the many Americans making a move because of economics, a recent article from MarketWatch titled “Thinking about moving to a state with lower taxes? These are the mistake to avoid” has the information you need about the tax impact of your prospective new home state.

Moving to a state with no personal income tax is not the quick and easy answer it seems. You’ve got to look at ALL the taxes that apply to residents, from property taxes to estate and inheritance taxes.

Here’s a good example: Texas has no personal state income tax. Colorado has a flat 4.63% personal state income tax. Therefore, if you are working and have a good income, it makes sense that Texas would be your best option, right? Wrong.

The property tax rate on a home in some Colorado Springs neighborhoods is about 0.49% of the property’s actual value. Let’s say you move to one of these areas and buy a home for $500,000. Your annual property tax bill: $2,450. Let’s say your taxable income is $200,000. Your Colorado state income tax bill would be $9,260, and with the property tax, your tax bill would be $11,710. For that same $500,000 home in Dallas—your property tax would be $21,200 or about $17,800 if you are over age 65 or a surviving spouse. The higher property tax means that your annual tax bill is lower in Colorado.

What about after you die? Seventeen states and the District of Columbia impose their own estate tax or inheritance tax, and Maryland imposes both. Exemptions from the state estate tax are way below the current federal estate tax exemption. However, if you move to the wrong state, your estate could shrink dramatically from the state’s death taxes.

To clarify, an estate tax is charged against the entire taxable estate, regardless of who inherits from the estate. An inheritance tax is charged against people who receive inheritance. The rate usually depends upon their relationship to you.

Here are a few state estate taxes to consider:

• Connecticut’s top estate tax rate is 12%, with a $5.1 million exemption allowed for 2020. The exemption increases to $7.1 million in 2021, and $9.1 million in 2022. Above $15 million of the estate tax value, the tax rate drops to 0%.
• Hawaii’s top estate tax rate is 20%, and in 2020, there is a $5.49 million exemption.
• In Illinois, the top tax rate is 16%, with a $4 million exemption in 2020.

Review the entire tax picture, before making this important decision. You should also confer with your estate planning attorney to learn how your estate’s structure—trusts and other estate planning tools—would work in a different state. Keep in mind that all of these tax exemptions, including the federal one, are likely to change as local, state and federal governments respond to the increased costs and lowered revenues brought about by the COVID-19 pandemic.

Reference: MarketWatch (Aug. 30, 2020) “Thinking about moving to a state with lower taxes? These are the mistake to avoid”

 

Understanding GRATs in Estate Planning

“Simultaneously, T&E practitioners are well aware of the primary risk posed by a GRAT; namely, the mortality of a grantor during the GRAT’s term.”

The 9^th U.S. Circuit Court of Appeals addressed whether a Grantor Retained Annuity Trust, or GRAT, should be included as a taxable asset in an estate, where the decedent died during the annuity period. The case, Badgley v. United States, was discussed in an article from Wealth Management titled “A String of Bad Luck: GRAT Assets Included in Taxable Estate.”

In 1988, Patricia Yoder created a GRAT, retaining the right to receive an annual annuity for a 15-year term. On the earlier of the term’s expiration and her death, the remainder interest would transfer to Patricia’s daughters under the terms of the GRAT. She funded the GRAT with a partnership interest valued at approximately $2.4 million. A gift tax return reporting the gift of the GRAT’s remainder interest was filed. She died in November 2012, just before the end of the GRAT term.

The family filed an estate tax return, and the entire date-of-death value of the GRAT was included in the gross estate. The executor of the estate then filed an action for a tax refund, claiming that only the present value of the unpaid annuity payments should have been included. A district court rejected that argument, stating that Patricia’s annuity interest was both a retained right to income and the continued enjoyment of the property, as defined in IRC Section 2036 and, therefore, was wholly includable.

The executor argued that it was not includible, as there is no explicit mention of annuities in Section 2036. The court disagreed, stating that “if the taxpayer does not let the property go, neither will the taxman.”

The court held that Section 2036 includes purportedly transferred property that the taxpayer continues to retain possession and enjoyment of, or a right to income. If there is enough of a connection from the owner to the transferred property, the property is included in the taxable estate.

In this case, the owner of the annuity received a substantial economic benefit from the GRAT, in the form of a 15-year annuity, so it was properly included in her estate.

When planning to minimize taxes during life and death, GRATs are frequently used to transfer appreciation from a person’s taxable estate with minimal or no gift tax, by reducing or zeroing out the value of the remainder interest, through fine-tuning the trust term and annuity amount.

However, there is a risk: there’s no way to know when a person will die. The successful use of the GRAT is predicated on avoiding the estate tax, in addition to the gift tax, and the GRAT success requires the person to survive the GRAT’s term.

An estate planning attorney working closely with the family and their financial professionals will need to explain how the GRAT works to ensure that it works to their estate’s benefit.

Reference: Wealth Management (May 13, 2020) “A String of Bad Luck: GRAT Assets Included in Taxable Estate”