Permanent Estate, Gift and GST Exemptions and Rates
The American Taxpayer Relief Act of 2012 was signed into law on January 2, 2013, and has finally provided a degree of certainty regarding the federal transfer tax system, making permanent the exemption levels from the 2010 Tax Relief Act. This means that the federal estate, gift and generation-skipping transfer ("GST") tax exemptions are all set at $5 million, indexed each year for inflation. The rate for each of these taxes on transfers in excess of the exemption amount increased from 35% to 40%.
The Act also makes permanent the provisions introduced in the 2010 legislation that allow a surviving spouse to make use of the unused federal estate tax exemption of a deceased spouse. These provisions do not apply to the $1 million exemption from the Massachusetts estate tax (or on similar exemption amounts in other states that impose an estate tax), and do not apply to the GST tax exemption. This provision has the potential to make estate planning simpler for some clients, but in many cases relying on these provisions will not produce optimal tax reduction.
Taking Another Look
While many existing estate planning documents contain formulas which will allow you to get the maximum tax benefits from the newly permanent higher exemption amounts, you should review your estate plan to make sure that the formulas produce the results you want from a personal perspective. For instance, in light of the higher exemption levels:
- A Family Trust, typically for your spouse and descendants, which previously would have been funded with $1 million will now be funded with $5 million (indexed), effectively reducing the amount set aside for the surviving spouse's sole benefit.
- A trust for grandchildren intended to hold assets exempt from GST tax would have held $1.5 million in 2004 or 2005 but will receive $5 million (indexed) if created under the trust instrument of a donor who dies now, potentially reducing the amount available for children.
In many instances a simple change such as a cap on funding amounts may address this concern, but you also may wish to revise your plan more broadly to take advantage of the opportunities afforded by larger exemption amounts.
Continuing Opportunity for Lifetime Gifts
Lifetime gifts continue to be an excellent method of using the newly permanent exemption amounts to minimize overall transfer tax exposure. Benefits of making lifetime gifts include:
- Allowing recipients to enjoy transferred property during your lifetime.
- Keeping future appreciation on the transferred property out of your estate.
- Taking advantage of current tax laws which may be changed by proposals currently before Congress, such as an effort to limit the maximum term of GST trusts.
Charitable Rollovers from IRAs
The American Taxpayer Relief Act of 2012 reinstates and extends until the end of 2013 the IRA charitable rollover opportunity previously available through the end of 2011. The Act permits direct charitable rollovers by taxpayers 70½ or older of up to $100,000 from traditional and Roth IRA accounts to certain charities other than private foundations and donor-advised funds. In order to take advantage of this opportunity for 2012, you must make the distribution by February 2013. This technique allows donors to avoid income tax on charitable contributions that might otherwise be subject to deductibility limits, and it also might lower a donor's state income taxes in certain states.
Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.
This article, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin Procter LLP or its attorneys. © 2013 Goodwin Procter LLP. All rights reserved.