Monday, January 7, 2013

The Top Ten Reasons You Need to Do Estate Planning in 2012

Does it seem like you are hearing more about estate planning lately? Well, you probably are. The financial press and estate planning professionals (lawyers, CPAs and financial advisors) have all been working hard to get the word out that people need to act before the end of the year to take advantage of an unprecedented, and perhaps even historic, opportunity in estate planning.
It’s a simple message, but one with tremendous impact: For the rest of 2012 only, which is quickly coming to a close, every American can transfer up to $5.12 million* free of federal gift, estate, and generation-skipping transfer tax.
* Minus certain gifts made in prior years.
Why This Is So Important
To understand why this is such a big deal, we only have to look at history. From 1942 through 1976, the estate tax exemption was $60,000. Then it began increasing yearly, reaching $600,000 in 1987. It stayed at that level for 10 years. During the later part of the Clinton administration, it was increased over 3 years to $675,000 and again stalled, this time for 2 years. Then, in President George W. Bush’s first term a series of increasing exemptions was enacted starting with $1 million in 2002 and ending with $3.5 million in 2009, followed by estate tax repeal for one year (2010) before reverting to $1 million in 2011. Most practitioners expected the Federal government to act to prevent that one year of repeal, but it did not.

Then, on December 17, 2010, Congress and the President reached an unexpected agreement and President Obama signed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, otherwise known as “TRA 2010.” It was a mixed bag. The good news: It provided an optional $5 million estate tax exemption for 2010 and a $5 million exemption for 2011 and 2012 that applied not just to estate taxes but also to lifetime gifts and the generation-skipping transfer tax. (The amount for 2012 was adjusted for inflation, resulting in the current $5.12 million exemption.) The bad news: The deal was only for two years. On January 1, 2013, the estate tax exemption will drop all the way back to $1 million (unless the President, the House of Representatives and the Senate all agree otherwise before then).

Here’s a table summarizing the history since 1987:

Federal Estate Tax Exemption
Gift Tax Exemption
$1 million
$1 million
$1.5 million
$1 million
$2 million
$1 million
$3.5 million
$1 million
N/A (repealed) or $5,000,000
N/A (repealed) or $5,000,000
$5 million
$5 million
$5.12 million
$5.12 million
$1 million*
$1.4 million*
* Current law, effective January 1, 2013

Are You Missing This Opportunity?
If you haven’t taken advantage of this exceptional opportunity, you are not alone. Some people think the impending change doesn’t apply to them because their estate is less than $5.12 million. (Wrong.) Others think they can’t use the exemption unless they die in 2012. (Also wrong.) Others have thought about it, but just haven’t gotten around to doing anything about it, perhaps hoping that Washington, D.C. will do something again like it did in 2010. Whatever the reason, unless you do something before the end of the year, you could come to regret your inaction.

Here, then, is another explanation of why it really is
important for you to plan this year.

The Top Ten Reasons Why You Need to Plan Your Estate in 2012

1.   In 2012, every American has a $5.12 million exemption; a married couple can use both their exemptions and transfer up to $10.24 million out of their estates.

2.   You do not have to die in 2012 to use your exemption. You can use it to make gifts now, while you are living, including making a gift in trust to your spouse so it is out of both estates.

3.   You don’t have to use the full $5.12 million exemption to benefit. Those with $1 million to $5 million in assets can save substantial amounts. Even those with less than $1 million should consider some planning to prevent future tax liability and freeze, for gift and estate tax purposes, the value of those assets.

4.   If you had already used all of your exemption before 2012, you now have more that you can use this year. For example, if you previously used a $3.5 million exemption in your planning, you have an additional $1,620,000 you can use this year. Even if you used $5 million in 2011, you have an additional $120,000 you can use this year. (Remember, married couples can double the amount.)

5.   You do not have to make the transfers in cash or liquid assets, or completely give away your assets. You can transfer illiquid assets like an interest in your business or your home or other real estate to a trust. If you transfer your home, you can continue to live there and take the tax deductions. If you transfer an interest in your business, you can even do it in such a way that you can keep control of the business. By planning now, future appreciation of these assets will not be subject to estate tax, and current depressed values may result in very favorable valuations.

6.   You can leverage your exemption and make it worth much more by using discounts and life insurance. Life insurance proceeds, when structured properly, can be completely free of probate, and
income, gift and estate taxes, and can be protected from beneficiaries’ creditors and predators, even divorce proceedings.

7.   There are proven estate planning techniques available now (including discounting, family limited partnerships, grantor trusts, and others) that may soon be eliminated as Congress looks for more ways to raise revenues. Coupled with the $5.12 million exemption and historic low interest rates, for the next 2 1/2 months families can transfer significant
assets at little or no tax.

8.   The generation-skipping transfer tax (GSTT) exemption is also $5.12 million in 2012. The GSTT tax is in addition to
the federal estate tax and applies when you make a gift or leave an inheritance to someone who is a generation younger than you are (37.5 years for non-descendants). In 2012, a married couple can use both their GSTT exemptions to transfer up to $10.24 million tax-free to benefit their grandchildren and future generations.

9.   If you wait just until January to plan, the amount you can give to your loved ones (current and future generations) may be substantially lower than if you act now. If the President, the Senate and the House of Representatives do not all agree to change the law, not only will the exemptions be lower in 2013, but the tax rates will also be higher, as shown in the chart below.
Federal Estate Tax Exemption
Top Estate Tax Rate
Federal Gift Tax Exemption
Top Gift Tax Rate
GSTT Exemption
GSTT Tax Rate
$5.12 million
$5.12 million
$5.12 million
$1 million*
$1.4 million*
$1 million*
* Current law, effective January 1, 2013

10.   If you have a substantial estate and use your entire $5.12 million exemption in 2012, unless the President, the Senate and the House of Representatives all agree to change the law, it would be better to give more this year and pay the gift tax at the current 35% rate instead of paying it at 55% in 2013.

Planning Tip: It will also cost you less to pay a gift tax now instead of paying an estate tax after you die, even if the tax rate is the same. For example, a taxable gift of $1.00 makes you liable for $.35 in gift tax for a total of $1.35. But the same $1.35 in your estate taxed at 35% will net just $.88 to your heirs.

How an Experienced Estate Planning Attorney Can Help
Most estate planning attorneys have counseled many families, and they have seen the results of proper and improper planning. An experienced estate planning attorney can guide you through the estate planning process and will be able to bring in other experienced professionals as their various areas of expertise are needed to help put your plan into place.

You should never give away assets you might need, and any kind of gifting program must be done under careful professional guidance and supervision to be sure everything is done correctly. It is also important to take full advantage of other tax-free gifting opportunities before you start using your exemption.

Make Annual Tax-Free Gifts
Federal law currently lets you give up to $13,000 per year to as many people as you wish without incurring a gift tax or generation-skipping transfer tax.* A married couple can give twice this amount, or $26,000 per year per person. (These amounts are currently tied to inflation and may increase to $14,000 and $28,000 for 2013.)

* Not all gifts in trust are entitled to either or both exemptions and estate planning attorneys knows those rules.

Over time, a great deal can be transferred through annual gifts. For example, if you give $13,000 a year to five beneficiaries for five years, you will have removed $325,000 from your estate for estate tax purposes, not including any growth on these assets. The amount removed from your estate is increased significantly with each additional $13,000 beneficiary or by spouses combining their annual exclusions.

When you give more than the annual tax-free amount, the excess will be considered a taxable gift and will be applied to your federal gift and estate tax exemption (currently $5.12 million). Remember, you can make substantially bigger gifts this year with a higher exemption than you can next year if the exemption is lower.

Make Unlimited Gifts to Charity and Pay Beneficiaries’ Medical Care and Tuition Expenses
You can also make unlimited tax-free gifts to charity and for medical care and tuition expenses as long as payment is made directly to the charitable organization, medical facility or educational institution. The beneficiary does not have to be related to you.

Use Discounts and Advanced Planning Techniques
Your estate planning attorney can help you implement advanced planning solutions that will best suit your goals and objectives, and make the best use of the various wealth transfer techniques that are currently available.

What We Can Expect in 2013
No one knows what will happen with the law in the future, but it is very likely that the gift tax
exemption will fall significantly, perhaps to $1 million even if a deal is struck among the President, Senate and House of Representatives. This is true even if the estate tax exemption stays the same or falls to a lesser number, like the $3.5 million proposed by the President’s budget.

Unless the Bush era tax cuts are extended, all
taxes (income, capital gain, dividend, estate, gift and generation-skipping transfer taxes) are set to go higher on January 1, 2013. There will also be a new 3.8% surtax on certain investment income and a 0.9% surtax on certain earned income that is part of the Affordable Health Care Act.

The next 2 1/2 months really provide a unique estate planning opportunity to transfer substantial assets--an opportunity that may be gone on January 1, 2013. You owe it to yourself and to your family to meet with us as soon as possible to find out how much you
can save by implementing estate planning before the end of this year.


1.   For the rest of 2012, America has a $5.12 million lifetime federal
      gift and generation-skipping transfer tax exemption.                                               T          F

2.   Most people have already taken advantage of this opportunity.                                T          F

3.   A married couple can use both their exemptions and transfer up to
      $10.24 million out of their estates if they do it before January 1, 2013.                    T          F

4.   You have to die in 2012 to use the $5.12 million exemption.                                   T          F

5.   You have to use the full $5.12 million exemption to benefit.                                    T          F

6.   If you used all of your exemption before 2012, you cannot use more this year.        T          F

7.   To use the exemption while you are living, you have to make the transfers in
      cash or liquid assets.                                                                                         T          F

8.   By planning now, future appreciation of these assets will not be subject to estate
      tax, and current depressed values can result in very favorable valuations.                T          F

9.   In 2012, a married couple can use both their GSTT exemptions to transfer up to
      $10.24 million tax free to benefit their grandchildren and future generations.            T          F

10. There are proven estate planning techniques available now that may soon be
      eliminated as Congress looks for more ways to raise revenues.                                 T          F

True: 1, 3, 8, 9, 10
False: 2, 4, 5, 6, 7

Uncovering Charitable Planning Opportunities

Charitable giving is discretionary spending. It is affected by both the economy and the income tax rates. Not surprisingly, charitable giving has been down in recent years, but this does not mean clients are less charitably inclined. Many just need to be pointed in the right direction. With the $5.12 million transfer tax exemption ending on December 31st and higher income tax rates looming for 2013, now is an excellent time to begin discussing charitable planning solutions.

Choice of a charitable planning technique is mostly driven by the type of client and asset involved. Therefore, in this issue of The Wealth Counselor, we will focus on the types of clients who might benefit from charitable planning and for each the kinds of charitable planning that can work for them, and some pitfalls to avoid.

Charitable planning is most beneficial to those clients who already have some interest in charity or have other non-tax reasons for doing charitable planning.

Client Category: Young Professionals
These clients are usually still building their assets and may have some outstanding student loans and probably have mortgage debt. Their current estate planning goals are more likely to be centered on taking care of a surviving spouse and minor children, but they may still like to benefit their favorite charities (a college or church, for example) if they were to pass away unexpectedly. For these busy professionals, simple is usually best. Flexibility is also important because their estate plan will need to change several times over their lifetimes.

For these reasons, a simple bequest in a will or trust may be the solution. It’s not complicated, it’s revocable, and it can be drafted to take effect after the death of the second spouse.

Planning Tip: If there will be significant restrictions on the gift, the client should talk to their charity first and make sure the gift will be acceptable. For example, some charities have minimum requirements on gifts to be used for specific purposes.

Tax Issues
Assuming the beneficiary is a qualified domestic or foreign charity, the bequest should generate an estate tax charitable deduction. Note the difference with income tax deductions, which do not apply to gifts to foreign charities. Gifts to certain ESOPs and to fraternal benefit organizations (lodges) can qualify for the estate tax charitable deduction, but those to sororities and fraternities usually do not.

Client Category: Has a Large IRA or Retirement Plan Account
Doctors, business executives and other clients may have large IRAs, sometimes with few other liquid assets. The problem is that, because of the combined effects of income and estate taxes, dying while owning a large IRA can create a large tax liability—with as much as 70% of the IRA going to taxes. For clients with large IRAs, especially those who are not married, charitable IRA planning is often very attractive.

Potential strategies include:
1) Naming a qualified charity as the beneficiary of all or part of the IRA. This is easily accomplished by naming the charity as a beneficiary on a beneficiary designation form obtained from the IRA administer. The designation should be revocable to preserve flexibility.

2) If it comes back, taking advantage of the Charitable IRA Rollover. The Charitable IRA Rollover opportunity ended on December 31, 2011. However, there is a chance that it might be extended retroactively through December 31, 2013. (Such an extension is part of the proposed Family and Business Tax Cut Certainty Act of 2012, which passed the Senate Finance Committee on August 2, 2012.) Stay tuned for post-election developments.

The Charitable IRA Rollover allowed up to $100,000 to be paid by the IRA administrator to a qualified charity if the IRA owner had attained age 70 ½. Distributions counted toward the individual’s annual mandatory IRA withdrawal amount but were not included in the IRA owner’s taxable income.

Tax Issues
Funds held at the time of death in an IRA, 401(k), 403(b) or other deferred income account are called, in tax jargon, “income in respect of a decedent” or “IRD.” IRD includes all amounts earned during the decedent’s lifetime that have not yet been subject to income tax. Code Section 691 states that a recipient of IRD is treated as the recipient of the income and so must pay income tax on it.

Because a charity is tax-exempt, it can receive items of IRD without paying income tax on those items. Also, because the donor receives an estate tax deduction for the gift, IRD assets passing to a charity are unreduced by estate taxes.

By comparison, if IRD is inherited by an individual, that beneficiary would pay state and local income taxes on the IRD and the decedent’s estate would be liable for any state and Federal estate taxes.

Client Category: Has Low Basis Assets
Many clients have stocks and other investments with a low cost basis that they have held onto for a very long time. Low basis assets can also exist with younger clients, for example those who were involved in successful start-ups. This client may want to make a larger gift to a charity—endow a chair at their alma mater, set up a scholarship fund, or help to renovate their church—but needs an income stream. Charitable planning can minimize the client’s capital gain burden while monetizing the asset to provide the income stream.

Two strategies that will extend the recognition of gain over time are:
1) Charitable Gift Annuity (CGA). With a CGA, the donor transfers an asset or assets to a charity in return for the charity’s issuing an annuity contract to the donor. To the extent that this annuity does not provide the same value of benefit that a commercial annuity would provide; the difference is a gift to the charity. If the annuity is exchanged for appreciated property, it may be possible to recognize the gain on the transaction over the life of the annuity.

With a CGA, the donor receives a current deduction for the charitable portion of the transaction. The annuity payments continue for the agreed term, which may be the life of the donor(s). With a life annuity, the cumulative amount of the annuity paid may be more or less than the value of the original property transferred; depending on whether the donor(s) die prematurely or later than an actuary would predict. The annuity payment is a general debt of the charity so it is important to work with a charity that is credit worthy. Administrative costs are low, so a CGA can be done for fairly small amounts as long as the charity is willing.

Planning Tip: State law may limit the ability to use real estate or other very illiquid assets to purchase the CGA.

2) Charitable Remainder Trust (CRT). As with the CGA, the donor transfers appreciated property and receives a stream of payments over a defined term. With a CRT, the CRT Trustee sells the assets and pays the donor an annuity or “unitrust” amount (a set percentage of the fair market value of the trust’s assets revalued annually), depending on the terms of the CRT. Capital gain is recognized as the donor receives the annuity/unitrust payment. At the end of the trust term, the designated charity receives whatever is left in the trust. If the principal of the trust is exhausted in the payment of the annuity or unitrust amount to the donor, the income stream stops and the charity gets nothing.

Upon creation of the CRT, the donor receives a charitable income tax deduction for the actuarial present value of that remainder interest in the trust.

A CRT can benefit any charity, and is generally not limited in the type or amount of assets that can be used (with a general exception that a CRT should not hold an asset that produces unrelated business taxable income, such as S Corporation shares). Because a CRT is a separate, private trust, administrative costs are higher than is typical with a CGA, so a CRT is more often used for larger donation amounts.

Planning Tip: Current low interest rates used in the residual interest valuation (1.2% for November) disfavor the use of the CRT.

Note that neither the CGA nor the CRT erases the capital gain from the disposition of the appreciated asset. Instead, both defer the recognition of the gain over the life of the annuity or unitrust payment. As a result, some gain may not be recognized until the death of the donor if the annuity or unitrust is for life. Also, depending on the transaction structure, the donor may be able to plan the timing of some income.

Client Category: Has Income Producing Assets
This client may have equity in a small business or real estate that is producing a good amount of income. He does not want to permanently part with the asset and wants for it ultimately to go to his children. A Charitable Lead Trust (CLT) can be the answer for the charitably inclined client. A CLT can be designed to give an income stream to a charity, reduce the client’s estate and gift tax bill and preserve the asset for future generations.

A CLT is almost the opposite of a CRT. During the term of the CLT, the trust pays an annuity or unitrust amount to the charity. At the end of the trust’s term, the remaining assets can return to the donor or, more commonly, pass to family members. If the assets in the trust grow at a rate that is greater than the actuarial rate of growth, all of that appreciation passes free from estate or gift tax.

Planning Tip: In a low interest rate environment, when the government assumes a very low rate of actuarial growth, it is much easier for the CLT to outperform these assumptions and pass appreciation tax-free to the donor’s children or other beneficiaries.

Tax Issues
A CLT is a private trust and is subject to normal rules for the income taxation of trusts. A CLT can be a grantor or a non-grantor trust.

If the CLT is a grantor trust, the donor will receive an income tax deduction in the year of the CLT’s funding that is equal to the actuarial value of the income interest passing to the charity. But if the remainder beneficiary is a trust, the necessary generation skipping transfer (GST) tax allocation will not be determined until the trust term ends. On the other hand, if the CLT is not a grantor trust, the donor does not receive an income tax deduction on creation of the trust, but the trust will take a charitable deduction every year for the amount that it pays out to charity. The GST tax allocation amount is determined on the creation of the trust.

Planning Tip: A grantor CLT can be advantageous for a client who needs large up-front deductions in a year in which the donor has a significant income.

Client Category: Small Business Owner or High Net Worth
These clients have worked hard to build their wealth and they often want to leave a legacy for future generations. They like to be in control, but do not like to be bothered with a lot of details and definitely do not want the next generation to fail when they receive the family’s wealth. Proper use of a charitable component to wealth planning can greatly increase the probability that the next generation will preserve the legacy while balancing control issues and administrative complexity.

Worldwide and over recorded history, successful intergenerational wealth transfer has been difficult to achieve. It fails in about 70% of the cases. Family philanthropic activities have proven to be a very effective vehicle for training the next generation to manage and appreciate their family’s wealth. In addition to training the next generation, the donor’s name can be kept alive for an indefinite period. Did you ever notice all those donor names that stream by at the beginning or end of shows on PBS? They are the names of people who have used these charity strategies.

Two charity strategies that can help these clients leave a legacy are:

1) Donor Advised Fund (DAF). Under this arrangement, the donor gives assets to a charity that sponsors DAFs, such as a community foundation. The assets are held and managed by the charity in a separate account that is governed by a fund agreement that states how much of the assets in the DAF may be distributed each year (usually a percentage, typically 4%). The fund agreement also specifies who will have the opportunity to suggest to what charities, for what purpose, and in what amounts the distributions will be made. While the assets belong to the charity and the donor only has the ability to recommend distributions, most DAF-holding charities will honor the donor’s or other designated directing person’s wishes because it knows that unreasonable failure to do so would quickly become common knowledge and end its receipt of future donations. The DAF-holding charity usually charges an administrative fee (typically 1% per year) against the DAF assets. Typically, the DAF can continue beyond the life of the donor, and family members can hold recommendation powers. The rules will vary by DAF-holding charity.

2) Private Foundation. The private foundation is a separate entity with its own governing body, bylaws, tax return, bank account, EIN, etc. It offers the most control by the donor, but that control comes at a price. The private foundation is administratively complicated; the income tax deduction available for gifts to private foundations is more limited than that for gifts to other types of charities. A private foundation is also subject to limits on its investments, the manner in which grants can be made, is required to pay out at least 5% of its assets annually in grants and qualifying expenses, and most transactions between the foundation, its founder, the members of its governing body and their families/related entities are prohibited. The excise taxes that are imposed for violations are extremely punitive. Because of the administrative costs, a private foundation holding less than $2 million in assets is probably not feasible.

Planning Tip:  To get the benefit of the training opportunities that family philanthropy affords, the donor and the donor’s family members should meet both during the donor’s lifetime and after his or her death. The meetings should be open discussions in order to plan for the operation and ongoing administration of the DAF or private foundation. Otherwise, family members’ conflicting views, lack of time and/or lack of interest will cause problems after the donor’s death both for the family’s wealth and the family’s philanthropic activities.

Client Category: Land Owner
This client may have farmland, ranch land or land that is prime for development. The client may have family members that will take over the land after his or her death, but the client may be the last generation to actively operate the farm or ranch and is looking for other ideas to protect the land or pass on its value. It is critical to understand what the donor needs and when, in order to determine the proper planning option: for example, if he will continue to live on or work the property, if he needs cash flow, and if he needs a current or future tax deduction.

Charitable planning for the land owner may include:

1) Giving a charity a remainder interest in a farm, ranch or personal residence. This allows the client to live on and/or work the property during his or her lifetime and take a current income tax deduction for the current actuarial value of the remainder interest.

2) Giving a charity a fractional interest in land. This, too, provides a current income tax deduction for the fair market value of the interest donated to the charity. This technique is most often used with land that is not producing income.

3) Giving a charity a “qualified conservation easement,” whereby the land is burdened by some limitation on its development and is given the right of enforcement of the limitation. This gift, too, can qualify for a current income tax deduction if made during the donor’s life or an estate tax deduction if made at or after the donor’s death. Often a charity will not accept a qualified conservation easement without a simultaneous gift of money to fund the continual enforcement of the restriction over time. Qualified conservation easements are extremely technical and require great care to document and value.

For the landowner who needs an income stream from appreciated real property, a FLIP-CRUT (a specific type of Charitable Remainder Trust) may be appropriate. Under a FLIP-CRUT agreement, the donor transfers the land to the trust and, per the terms of the trust, pays the donor the income from the property prior to its sale and, following the sale, “flips” to paying a flat unitrust amount (e.g., 5% of the trust assets, valued annually). The amount paid to the donor from the unitrust changes with the value of the investments in the trust. The gain on the real estate is deferred over time with the donor recognizing gain annually as the unitrust amount is paid out. In the year the FLIP-CRUT is established, the donor receives an income tax deduction for the current value of the charitable component of the transaction.

Client Category: Collector
This is a client who has spent considerable time, effort and money over the years purchasing, housing and protecting something—art, antiques, cars, rare books, musical instruments, etc.—that means a great deal to him or her. A charity can help. An outright gift is the simplest opportunity, although it involves loss of possession to the public. However, through a structured gift to charity the collector may be able, for a while, to continue to enjoy the collection while mitigating the burden of housing and administering it.

The possibilities include:
1. Outright gift to a public charity for related use. If the donor gives tangible property to a public charity to be used by the charity in a way that is related to its mission, the donor’s income tax deduction is equal to the fair market value of the property reduced by any built-in short-term capital gain. If the donor gives the property to a private foundation or to an organization that will not use it for a related use, the donor’s deduction is generally limited to the donor’s basis in the property.

2. Fractional interest gift. The donor can give a fractional interest in an item or a collection (for example, giving a museum a one-half undivided interest as a tenant-in common). An arrangement like this would allow the donor and the museum to split the time each has possession of the collection. The IRS will allow a current deduction of the value of the fractional interest transferred if the charity obtains all of the interests in the property within earlier period of not more than ten years or on the donor’s death, if that occurs earlier.

The agreement with the charity must address its partial ownership of the property and arrangements for storage, transportation, display, insurance, conservation, etc.

Planning Tip: It is essential for someone to first talk to the charity and make sure it will accept the gift, especially if the donor desires to impose any restrictions on its use.

Charitable planning techniques are not “one size fits all.” Let the client’s assets, desires and needs lead to the technique(s) that might be appropriate. Advisors who are aware of these types of clients and charitable planning solutions that might work for them will prove very valuable to both their clients and the other advisory team members.