risks

The Tax Cuts and Jobs Act of 2017 was signed into law on December 22, 2017, and became effective January 1, 2018 (the “Act”). While most of the Act is made up of provisions that change individual and business income taxes, there were some significant changes to the Estate Tax laws.

We are still awaiting guidance from the IRS with respect to some of the provisions; however, this post will inform you with respect to some of the major changes in the Estate Tax laws and my initial thoughts on some planning opportunities. Note that as these new laws are analyzed and examined, it is anticipated that more planning opportunities will develop and I will update this blog as to such opportunities once further developed. The main purpose of this post is to advise you of the changes made and to give you a starting point when considering your own individual planning.

The Estate Tax is the tax that is assessed against an individual’s total estate and all assets included in such estate when that individual passes away. The Estate Tax rate of 40% did not change. However, the most significant change was the Estate Tax exemption amount doubled. Under the old law, the exemption amount was set to increase to $5,490,000 per individual and $11,180,000 per married couple in 2018; instead, the Act increased this exemption amount to $11,180,000 per individual and $22,360,000 for married couples. Therefore, if an individual passes away with total estate assets valued at less than that exemption amount (including all lifetime gifts), no Estate Tax would apply on such individual’s estate.

This significant increase in the Estate Tax exemption amount presents a number of planning considerations:

If an individual already used part or all of their Estate Tax exemption as part of their planning under the old law, that individual now has at least an additional $5,000,000 in exemption that they could now use in their planning.
Whether or not an individual has used any of their Estate Tax exemption amount already, much consideration should be given as to whether to use some or all of the exemption now. This is because one major piece of this new Act is that it sunsets in year 2026. This means that if no action is taken by Congress before 2026, the Estate Tax exemption amount will go back down to the old law exemption amounts (which would be approximately $6,000,000 per individual in 2026 with inflation adjustments). Thus, it is important to at least consider taking advantage of this increased exemption now. However, the question then becomes, if this new increased exemption amount does sunset in 2026, what will Congress do about individuals who have used more than that new lower exemption amount (i.e., the $6,000,000 exemption)? Will they be grandfathered in and those assets above that amount still not be subject to Estate Tax? Will the amount above the new lower exemption amount be brought back into their estate when they pass away and thus be subject to Estate Tax? These are some of the questions we are still looking to the IRS for guidance on.
This new Act retains the right of the surviving spouse to “port” over the deceased spouse’s unused exemption amount. What this means is if one spouse passes away without using their $11,180,000 exemption, the surviving spouse can elect to “port” over that $11,180,000 exemption in order to retain the benefit of that exemption when that surviving spouse later passes away. This can be extremely beneficial and must be considered as part of every estate plan and when a spouse passes away. Our thought is that even if the exemption amount sunsets in 2026, that this “ported” amount would still be allowed (if a spouse passed away between 2018 and 2026), even at the higher exemption amount. However, there has not been any IRS guidance on this yet. Furthermore, portability should also be used in conjunction with an exemption trust to allow the surviving spouse maximum flexibility.
All of the planning tools that were at our exposure before are still available; the impact of such planning may have changed though. Very briefly and generally, the benefits and risks of Estate Tax planning at this conjuncture are as follows:

Benefits of Estate Tax Planning

Using the Estate Tax exemption while it is available at this increased amount and before it goes away (possibly in 2026 or even sooner if other political changes occur) can be a substantial benefit to transfer more out of your estate tax-free.
Any appreciation on such assets after being transferred will also be out of your estate, providing even more Estate Tax savings.
Not only does it lower the Estate Tax at death, it can also lower your income taxes if you are no longer receiving the income from those assets after you gift them away.

Risks of Estate Tax Planning

We don’t know what will happen when the new Act sunsets in 2026, if that happens. Will the IRS conclude that any amount in excess of the lower exemption amount comes back into your estate? If that happens, will your estate have enough left to even pay the Estate Tax due?
If planning is done, what exemption does it use if you give away less than the future sunset exemption amount (which we believe will be approximately $6,000,000)? For example, if you give away $4,000,000 when the exemption amount is the current $11,180,000 and then later the exemption goes down to $6,000,000, do you only have $2,000,000 of exemption left ($6,000,000 new exemption minus $4,000,000 gifted) or $6,000,000 ($11,180,000 old exemption minus $4,000,000 gifted, but since over the current $6,000,000, capped at $6,000,000)?
For any assets in your estate at your passing, such assets receive a step-up in basis, which means your beneficiaries will not pay capital gain tax on any appreciation up until the date of death. However, for any assets transferred out of your estate, your beneficiaries lose the benefit of the step-up in basis on such assets (i.e., if the asset is sold, the beneficiary will pay capital gain tax on all appreciation). Thus, this loss of the step-up in basis and the assessment of the capital gains tax needs to be weighed against the Estate Tax.
What does the future hold? What will the value of the assets in your estate be when you pass away? Markets can change. What will the Estate Tax law in effect be when you pass away? Political turbulence and changes have this Estate Tax law in a constant flux.

My hope is that this information is helpful and gives you some ideas to consider.

-Matt

In Part 1 of this post, I focused on the similarities and differences between making annual gifts and making lifetime exemption gifts. Here, in Part 2 of this post, I will focus on the following reasons why it may still be important to consider making lifetime gifts:

To minimize estate taxes;
To engage in Medicaid planning;
To provide for your loved ones during your lifetime; and
To decrease the size of your estate for easier estate administration after your death.

Minimize Estate Tax

Currently, in 2015, the estate tax exemption amount is $5.43 million. That combined with your spouse’s lifetime exemption amount if you are married, comes to $10.86 million. Therefore, for a vast majority of the population, minimizing estate tax is not even going to be on the radar. However, even though this exemption is permanent and indexed for inflation currently (and has been since 2010), Congress could always repeal it and lower the exemption amount; for instance, just seven years ago the exemption was only $2 million and if you look back another ten years before that, it was only $625,000. If Congress chose to go back to the “good old days,” a lot more of us would be subject to the estate tax. Keep that in mind.

For those of you who are unlucky enough (or, maybe I should say lucky enough) to be above the estate tax exemption, lifetime gifting is a great strategy to minimize estate taxes. Basically, by gifting assets away during your lifetime, either through annual gifts or lifetime exemption gifts, you are in essence “freezing” part of your estate. Consider the two following examples:

Example 1: You and your spouse have a $20 million estate today. You both live another 20 years, during which time your estate earns 6% annual interest and is now valued at about $64 million. Assuming the estate tax exemption increases at 3% during that same time, your combined estate tax exemption amount is about $19.5 million. Therefore, about $44.5 million of your estate will be subject to estate tax, which comes to about $17.8 million in estate taxes (at a 40% estate tax rate).

Example 2: You and your spouse have a $20 million estate today. Using $10 million of your combined estate tax exemption amount, you make a lifetime gift of $10 million, bringing the value of your estate down to $10 million. Assuming the same 6% interest, after 20 years, your estate is now worth about $32 million. And, assuming the same estate tax exemption amount as in Example 1 (about $19.5 million twenty years from now), you would have about $9.5 million of combined estate tax exemption left to use ($19.5 million – $10 million previously used). Therefore, about $22.5 million of you estate will be subject to estate tax, which comes to about $9 million in estate taxes.

As you can see from the two examples above, by making a lifetime gift, you can save a substantial amount in estate taxes; $8.8 million in the examples above. Furthermore, the two examples above are stripped down for ease of illustration; if you took annual gifts into account each year and also used up the increase in the lifetime exemption amount each year, the savings would be even more substantial (plus there are many other strategies that can make lifetime gifting even more effective, e.g., by applying discounts to certain assets when gifting).

The main reason why this works so well is because your estate is typically going to grow at a faster rate than the estate tax exemption amount (and the greater the arbitrage, the greater the effect lifetime gifting can have on your eventual estate tax liability). Basically, meaning that, when you make a lifetime gift and rid your estate of that asset, you also rid your estate of the accumulation that the asset is going to make over your remaining lifetime. So you are in effect, freezing the value of that asset and the amount of your lifetime exemption that it is going to offset.

However, there is one major caveat to consider here and when considering any other reason to make lifetime gifts. When you die with an asset in your estate, the asset receives a step-up in basis. When you gift an asset during your lifetime, the asset has a carry-over basis. Below are two examples that illustrate the difference:

Example 1: Years ago you bought an asset for $10. It is now worth $100. The day before you die you gift it to your child. Your child then receives a carry-over basis of $10. If your child were to sell that asset when it is worth $110, your child would be subject to long-term capital gains tax on $100 ($110 – $10).

Example 2: Years ago you bought an asset for $10. It is now worth $100. You die with the asset and bequest it to your child. Your child then receives a step-up in basis of $100. If your child were to sell that asset when it is worth $110, your child would be subject to long-term capital gains tax on only $10 ($110 – $100).

As you can imagine, that difference plays a major role when considering lifetime gifting. In some instances, it may be a deal breaker, and in others, it may not affect the decision as much. For instance, if you will be subject to estate taxes, it may be more beneficial to reduce your estate before you die even if your child would be subject to more capital gains tax on that asset because the highest long-term capital gains tax rate is only 23.8% (which includes the net investment income tax) compared to a 40% estate tax rate. However, if you are not subject to the estate tax, it may be more beneficial to keep low basis and high growth assets in your estate so that when you pass away, those assets will receive a step-up in basis and save your heirs substantial amounts in long-term capital gains tax.

Medicaid Planning

Nursing home costs are a major concern for many (and, with good reason, the national average nursing home costs are around $6,500 a month). Long-term nursing home care can wipe out your entire estate pretty quickly. Therefore, Medicaid planning has become a large part of estate planning today. And, one of the most used Medicaid planning strategies is lifetime gifting.

Each State has its own complex set of rules when it comes to Medicaid planning with lifetime gifting and the rules are forever changing so it is important to contact an expert when considering this strategy. However, the basic strategy is this – to gift away your assets prior to the Medicaid look back period (depending on your State that look back period could be 3 years, 5 years, or some other time period).

There are a number of risks associated with lifetime gifting that are especially pertinent here. Once you’ve made a gift it is irrevocable. Meaning that the person you gave the gift to now owns it. You cannot get it back. Furthermore, the person who you gave the gift to is now at risk of losing it; for example, to creditors, to a divorcing spouse, to different heirs if they pass away, etc. This means that the person you gave the gift to may not be able to support you later on should you need it.

All of these risks are heightened during Medicaid planning. This is because if you don’t make it past the look back period, you will be hit with a penalty period based on the gifts given during that look back period. During that penalty period you will not receive support from Medicaid for nursing home costs, which could really leave you in a tough spot if you have no other access to support. Furthermore, if you never end up needing Medicaid and living a long life outside of a nursing home (like we all hope), you may no longer have enough to support yourself because you gifted it all away. Therefore, lifetime gifting as a Medicaid planning technique must be discussed with an expert to ensure you are weighing all of the benefits and risks associated with it.

Providing for Loved Ones During Life

Lifetime gifting may be a great way to provide for your loved ones during your lifetime. If an annual gift is less than $14,000 to any one person, not only will there be no tax liability, there is no requirement to file a Gift Tax Return. Even if the gift is greater than $14,000, there will be no tax liability so long as you have not used up your entire current lifetime exemption amount of $5.43 million. However, you will be required to file a Gift Tax Return to report a gift greater than $14,000 to any one person within the same year.

Lifetime gifts can be a great way for people to support their loved ones during their lifetimes without the fear of tax consequences or added responsibilities (like filing another tax return). However, you do need to consider the carry-over basis versus step-up in basis discussion above if gifting securities and/or property as opposed to cash.

Ease of Estate Administration at Death

Lifetime gifting may also be a great way to ease the administration of your estate at the time of your death. Typically, the smaller the estate, the easier it is to administer it at death. Furthermore, the type of assets that are held in your estate at the time of your death can determine how easy or how cumbersome administering your estate will be. If your estate is made up of entirely nonprobate assets, then administering your estate will be relatively easy. However, if you estate is made up of many different probate assets, then administering your estate will become more cumbersome and expensive.

By making lifetime gifts that reduce the value of your estate and rid your estate of probate assets, you can really lift some of the burden and costs that fall on your loved ones when having to administer your estate after your death. Again, however, you do need to consider the carry-over basis versus step-up in basis discussion above. Furthermore, you do not want to diminish your estate to a level where it becomes difficult for you to live day-to-day.

Conclusion

As you can see from above, lifetime gift planning is still very much alive in estate planning today. And, this holds true even for those who are not concerned about estate taxes. However, there are many things that need to be considered before making a lifetime gift and they should be discussed with an expert. But, if after weighing all of the risks and benefits, the scales are tipped in your favor, lifetime gifting can provide an important estate planning technique that starts to take effect prior to much of your other estate planning.

Thanks for reading!

-Matt

Crummey Estate Plan

All Things Estate Planning – Putting You "In the Know"

Estate Tax Update: Initial Thoughts

Lifetime Gifts: An Important Estate Planning Technique (Part 2)