Need For Flexible Estate Planning

If you are like everyone else who has owned both stocks and real estate, the last few years have been terrible.  Most individuals I have talked to have had their dreams changed.  Some have been very dramatic. Younger individuals or couples have a much longer horizon to hopefully recoup their money, while the older generation must make adjustments that they thought they would not have to face.

Does estate plans reflect current intentions?  Tax professionals encourage their clients to review their estate plans frequently. Recent events have made such a review more important than ever, as changes in tax law and asset values may well have made the individual’s plan diverge substantially from its original path.  In an article by PATRICK J. LANNON and MICHAEL C. GERSON entitled “JITTERY MARKETS—AND CLIENTS—CREATE NEED FOR FLEXIBLE ESTATE PLANS,” the authors discuss the need for individuals to still plan but have more flexibility.  Some of their comments are below.

Estate tax changes.  Since 1997, the applicable exclusion amount has risen from $600,000 to $5 million. As a result, existing estate plans that create separate “bypass” and “marital” trusts or otherwise intend to take advantage of this exclusion should be reviewed to make sure that this huge change has not had an unforeseen impact on the planning. It seems every two years Congress changes its mind and will continue to do so because of the need for additional money to pay down the national debt.

One recent change for 2011 and 2012 deals with a surviving spouse to be able to use their deceased spouse unused portion of the current $5 million for their estate on the surviving spouse death.  This is called portability.  It is due to expire in 2013.

For example, individuals with smaller estates may want to eliminate trusts that were added for tax purposes but never favored by them. Given the expanded applicable exclusion amount, individuals with more modest wealth may wish to revert to their preference for holding assets jointly rather than separating them to make sure each spouse’s exclusion is used. Such planning should, of course, take into account the possible loss of step-up in basis for capital gain tax purposes on the death of an owner, as well as the loss of the various other benefits of planning with trusts such as creditor protection for beneficiaries.

In standard marital planning, the marital trust may now be much smaller than contemplated. As a result, the surviving spouse may receive much less income than expected. A client with modest wealth who still wants to create a credit shelter trust but is concerned about his or her spouse having sufficient assets may wish to name his or her spouse as sole beneficiary of the credit shelter trust, with a power of appointment in favor of descendants. This should give the spouse a greater sense of security while retaining many of the benefits of the more common “sprinkle” trust.

“Minimal impact” estate planning.  Not all individuals will be looking for ways to obtain more assets for themselves or family members. They may be concerned in the current economic environment that advanced estate planning strategies will commit them to excessive current or future outlays. Many advanced strategies involve giving property away, so individuals run the risk of depleting assets that will be needed later to support their lifestyles. This concern may be especially strong for persons who are wealthy on paper but have few liquid assets available to spend. They may be surprised to learn that some estate planning strategies can be customized to minimize the impact of the planning on their enjoyment of their property.

One common gift-giving strategy that has a minimal impact on client enjoyment of property is gifts or discounted sales to family members of non-voting stock in a family business, or of partial interests in real property. With proper attention to avoiding estate inclusion due to retention of an interest, these gifts or sales may remove assets from a client’s estate while minimizing the impact on his or her enjoyment of the property.

“Toggle” strategies.  Some of the most powerful estate tax avoidance strategies require a continuing commitment from the client that may last for years. Individuals wary of future outlays may be reassured that some strategies may include a “toggle” feature, such that they can be turned off and perhaps on again.

One of the most common estate planning strategies is annual gift giving, intended to take advantage of the annual exclusion for gift tax purposes (currently $13,000 per donor per donee) or the Section 2503(e) exclusion for payments to medical or education providers. Some people may continue or begin a regular course of annual gifts, but a cautious individual will take care to avoid making beneficiaries dependent on the regular support.

An individual may be reluctant to begin a gift-giving program that he or she will not feel free to end if their net worth should fall. Annual exclusion gifts to trusts, whether through the use of Section 2503(c) or “Crummey” powers, can moderate this risk by allowing a build up within the trust of assets contributed as gifts, with trustee oversight on withdrawals. This feature, together with the asset protection and other beneficial features of trusts, may convince a client to accept the additional complexity of a trust. With such a trust, a client with a falling net worth can stop the gift giving at any time and rely on the built-up asset value from prior gifts to smooth out the impact on the beneficiaries.

An individual may also create a lifetime grantor trust with a feature that allows grantor trust status to be removed if the client in the future does not feel that he or she has sufficient assets to shoulder this liability/continuing gift.