Will my estate be subject to death taxes?
The federal estate tax is computed as a percentage of your net estate. Your net taxable estate is comprised of all assets you own or control, minus liabilities and certain deductions for administrative expenses, funeral and burial costs, charitable donations and the marital deduction for property passing to your spouse who is a U.S. citizen. The federal estate tax currently taxes estates with net assets of more than $5,250,000.
Even if you believe that you are not currently affected by the federal estate tax, you may have a taxable estate in the future as your assets appreciate in value. You should regularly review your estate plan to ensure that it takes into account changes in the tax laws and your individual circumstances.
What is my taxable estate?
Your taxable estate is the total value of your assets including your home, other real estate, business interests, your share of joint accounts, retirement accounts, and life insurance policies, minus debts and liabilities owed by you at the time of your death and deductions such as administrative expenses, funeral expenses paid out of the estate, bequests to charities and value of the assets passed on to your spouse who is a U.S. citizen. The taxes imposed on the taxable portion of the estate are then paid out of the estate itself before distribution to your beneficiaries.
What is the unlimited marital deduction?
The federal government allows every married individual to give an unlimited amount of assets either by gift or bequest, to his or her spouse without imposing any federal estate or gift taxes. In effect, the unlimited marital deduction allows married couples to delay the payment of estate taxes at the passing of the first spouse because at the death of the surviving spouse, all assets in the estate over the applicable exclusion amount ($5,250,000 ) will be included in the survivor’s taxable estate. It is important to keep in mind that the unlimited marital deduction is only available to surviving spouses who are United States citizens.
What is a Credit Shelter or A/B Trust and how does it work?
A Credit Shelter Trust, also known as a Bypass or A/B Trust is used to eliminate or reduce federal estate taxes and is typically used by a married couple whose estate exceeds the amount exempt from federal estate tax.
Because of the Unlimited Marital Deduction, a married person may leave an unlimited amount of assets to his or her spouse, free of federal estate taxes and without using up any of his or her estate tax exemption. However, for individuals with substantial assets, the Unlimited Marital Deduction does not eliminate estate taxes, but simply works to delay them. This is because when the second spouse dies with an estate worth more than the exemption amount, his or her estate may be subject to estate tax on the amount exceeding the exemption. Prior to “portability”, the first spouse’s estate tax credit was unused and, in effect, was wasted.
Prior to portability, a Credit Shelter Trust was used to preserve the exemptions of both spouses. Upon the death of the first spouse, the Credit Shelter Trust establishes a separate, irrevocable trust with the deceased spouse’s share of the trust’s assets. The surviving spouse is the beneficiary of this trust, with the children as beneficiaries of the remaining interest. This irrevocable trust is funded to the extent of the first spouse’s exemption. Thus, the amount in the irrevocable trust is not subject to estate taxes on the death of the first spouse, and the trust takes full advantage of the first spouse’s estate tax credit. Special language in the trust provides limited control of the trust assets to the surviving spouse which prevents the assets in that trust from becoming subject to federal estate taxation, even if the value of the trust goes on to exceed the exemption amount by the time the surviving spouse dies.
Under current law, portability enables the the surviving spouse to utilize the unused portion of the estate tax exemption of first spouse to die even if a credit shelter trust was not formed. However, portability is not automatic. To take advantage of it, an estate tax return must be filed with the IRS within 9 months of the passing of the first spouse, even if there are no taxes due.
What is a Qualified Personal Residence Trust (QPRT) and how does it work?
Our homes are often our most valuable assets and hence one of the largest components of our taxable estate. A Qualified Personal Residence Trust, or a QPRT (pronounced “cue-pert”) allows you to give away your house or vacation home at a great discount, freeze its value for estate tax purposes, and still continue to live in it.
Here is how it works: You transfer the title to your house to the QPRT (usually for the benefit of your family members), reserving the right to live in the house for a specified number of years. If you live to the end of the specified period, the house (as well as any appreciation in its value since the transfer) passes to your children or other beneficiaries free of any additional estate or gift taxes. After the end of the specified period, you may continue to live in the home, but you must pay rent to your family or designated beneficiary to avoid inclusion of the residence in your estate. This may be an added benefit as it serves to further reduce the value of your taxable estate,but the rent income does have income tax consequences for your family. If you die before the end of the period, the full value of the house will be included in your estate for estate tax purpose. In most cases, however, you are no worse off than you would have been if you not established a QPRT. An added benefit of the QPRT is that it also serves as an excellent asset/creditor protection vehicle because, technically, you no longer own the property once the trust is established.
What is an Irrevocable Life Insurance Trust and how does it work?
There is a common misconception that life insurance proceeds are not subject to estate tax. While the proceeds received by your loved ones are free of any income taxes, they are part of your taxable estate and therefore your loved ones can lose forty percent of the policy’s proceeds to federal estate taxes. An Irrevocable Life Insurance Trust keeps the death benefits of your life insurance policy outside your estate so that they are not subject to estate taxes. There are many options available when setting up an ILIT. For example, ILITs can be structured to provide income to a surviving spouse with the remainder going to your children from a previous marriage. You can also provide for distribution of a limited amount of the insurance proceeds over a period of time to a financially irresponsible child.
What is a Family Limited Partnership and how does it work?
A Family Limited Partnership (FLP) is simply a limited partnership among members of a family. A limited partnership has both general partners (who control management) and limited partners (who are passive investors). General partners bear unlimited personal liability for partnership obligations, while limited partners have no liability beyond their capital contributions. Typically, the partnership is formed by the older generation family members who contribute assets to the partnership in return for a small general partnership interest and a large limited partnership interest. The older generation then transfers the limited partnership interests to their children and/or grandchildren, while retaining the general partnership interests (and control the partnership).
The FLP has a number of benefits: transferring limited partnership interests to family members reduces the taxable estate of the older family members while they retain control over the decisions and distributions of the investment. Because the limited partners cannot control investments or distributions, they can be eligible for valuation discounts at the time of transfer which reduces the value of their holdings for estate and gift tax purposes. Lastly, a properly structured FLP can have creditor protection characteristics since the general partners are not obligated to distribute earnings of the partnership.
However, the FLP must be timely formed and properly structured. Otherwise, you will not obtain these benefits.