The Estate Planner July/August 2011 The GST tax exemption A tool to generate future tax savings Estate planning isn’t just about taxes Are your loved ones’ inheritances protected? Add spendthrift language to a trust to safeguard assets Estate Planning Red Flag You haven’t planned for incapacity Shumaker, Loop & Kendrick,LLPCharlotte Columbus Sarasota Tampa ToledoFirst Citizens Bank Plaza Huntington Center 240 South Pineapple Ave. Bank of America Plaza North Courthouse Square128 South Tryon Street 41 South High Street 10th Floor 101 East Kennedy Blvd. 1000 Jackson StreetSuite 1800 Suite 2400 Sarasota, Florida Suite 2800 Toledo, OhioCharlotte, North Carolina Columbus, Ohio 34236-6717 Tampa, Florida 43604-557328202-5013 43215-6104 941.366.6660 33602-5151 419.241.9000704.375.0057 614.463.9441 813.229.7600 Distribution of The Estate Planner is limited to clients of Shumaker and estate planning professionals who request a subscription.
The GST tax exemption A tool to generate future tax savings T The generation-skipping transfer (GST) tax can have harsh consequences. Those who take full advantage of GST planning strategies, however, have an opportunity to shield their wealth from and then distributed the trust assets to their grand- children. Because the children never obtained con- trol over the trust assets, the value of those assets was never included in their taxable estates. tax and build a lasting legacy. Last year the GST tax exemption — along with If your estate is substantially the gift and estate tax exemptions — was increased to $5 million for 2011 and 2012 (to be adjusted larger than $5 million, the key for inflation in the latter year). However, in 2013, to making the most of your GST absent further legislation, the GST exemption will drop back to $1 million (adjusted for inflation). tax exemption is to allocate it To leverage the exemption to maximize wealth for future generations, it may be better to act sooner in a manner designed to produce rather than later. the greatest tax savings. GST basics Alternatively, parents whose children were finan- The GST tax, in its current cially independent could skip a generation simply form, was created in 1986 to by making outright gifts or bequests directly to address a perceived loophole their grandchildren. in estate tax laws. Gift and estate taxes were designed to The GST tax prevents this tax avoidance. It applies — tax property at least once at the highest marginal estate tax rate and in addition to in each generation. People any gift or estate taxes otherwise due — to transfers would make taxable to a “skip person.” gifts or bequests to their children, who A skip person generally is a grandchild in turn would make or other relative who is more than one taxable gifts or bequests generation below the transferor or a nonrela- to their children, and so on. tive who is more than 37.5 years younger than the transferor. GSTs also include transfers to certain It didn’t take long for affluent trusts, including those whose beneficial interests families to realize that they could are held only by skip persons. bypass gift and estate taxes in one or more generations by making Three types of transfers may trigger GST taxes: transfers that skipped a gen- eration. For example, parents 1. A direct skip. This includes outright gifts to might place assets in a trust that a skip person — such as writing a check to your paid income to their children for life grandchild — as well as outright bequests at death.2
2. A taxable trust ter-mination. For example, Taking control of the GST tax exemptiona child with a life interestin a trust dies, causing To help avoid inadvertently losing generation-skipping transfer (GST) taxthe trust assets to pass to exemption benefits, the tax code provides for the exemption to be allo-your grandchildren. cated automatically to certain transfers unless you affirmatively opt out. This includes direct skips as well as transfers to certain trusts that have3. A taxable trust dis- the potential to benefit skip persons in the future.tribution. Any distribu- Despite Congress’s good intentions, the automatic allocation rules don’ttion of trust income or always work in your best interest. In the example in the main article, halfprincipal (other than a of Jake’s exemption would automatically be allocated to the direct skip todirect skip or termina- his grandson, even though he’s better off allocating his entire exemptiontion) to a skip person. to the trust. In this case, Jake would be wise to file an election to opt out of the automatic allocation rules.GST tax applies only totransfers that are subject Whenever you make gifts that will (or may) benefit your grandchildren or moreto gift or estate tax. For remote generations, it’s a good idea to consult your estate planning advisor toexample, outright gifts be sure you allocate your exemption in the most tax-efficient manner.protected by the $13,000annual exclusion anddirect payments of qualifying tuition or medical Here’s an example: In 2011, Jake makes an outright giftexpenses aren’t subject to gift tax and thus aren’t of $2.5 million to his grandson, Jeff. Later, Jake trans-subject to the GST tax. So they’re ideal gifts for fers $5 million to an irrevocable trust that provides hisgrandchildren. daughter, Betty, with income for life and leaves the remaining trust assets to her children. Jake allocatesAs you plan your estate, be aware of the “predeceased $2.5 million of his GST tax exemption to the directchild” exception: A grandchild whose parent (your skip gift to Jeff and the other $2.5 million to the trust.child) has died “moves up” a generation and no lon-ger is considered to be a skip person. Any transfers The trust has an “inclusion ratio” of 0.5 — which isyou make to that grandchild after the parent’s death, the portion of the transfer ($2.5 million/$5 million)therefore, aren’t subject to GST tax. that’s not protected by Jake’s GST tax exemption. Later, the inclusion ratio determines the portion ofMaking the most any taxable distribution or termination that’s subjectof the exemption to GST tax.If your estate is substantially larger than Suppose, for example, that Betty dies 10 years$5 million, the key to making the most of your later and the trust assets, which have grownGST tax exemption is to allocate it in a manner to $10 million, are distributed to her children.designed to produce the greatest tax savings. Based on the trust’s inclusion ratio, half of thatYou can allocate your exemption to direct skips, amount, or $5 million, is subject to GST tax.as well as to transfers in trust that are likely toresult in GSTs in the future. If, instead, Jake had allocated his entire exemption to the trust, the direct skip to Jeff would have been sub-The advantage of allocating a portion of your ject to GST tax. But the trust’s inclusion ratio wouldexemption to a trust is that it shields future appre- have been zero, shielding the entire $10 million inciation from GST tax, effectively leveraging your trust assets from GST tax. In other words, this strat-exemption to avoid taxes on amounts well in excess egy would have cut the taxable amount in half, fromof the current exemption. $5 million to $2.5 million. 3
One of the most effective tools for leveraging the GST tax exemption is an irrevocable life insurance trust (ILIT). You need allocate only enough of your exemption to cover contributions for premium payments to shield the death benefit, and any appreciation in other trust assets, from GST tax. To implement the most tax-efficient GST tax strat- egy, be sure you understand the automatic alloca- tion rules. (See “Taking control of the GST tax exemption” on page 3.) Creating a dynasty Strategic allocation of your GST tax exemption to one or more trusts allows you to minimize GST taxes and maximize future growth. A carefully designed GST trust can even serve as a “dynasty trust” that benefits not only your grandchildren, but also future generations for decades to come. D Estate planning isn’t just about taxes L Last year the estate tax exemption amount was increased to $5 million. If your net worth is under this threshold, can you put off estate planning? From a tax-planning perspective, the increased you. Consider both family and nonfamily members, based on a variety of criteria — from religious beliefs and educational values to age and financial security. exemption amount takes some of the pressure off. Be sure to discuss your wishes with potential guard- But estate taxes are only one piece of the estate ians to be sure they want the job. And once you planning puzzle. In fact, there are critical nontax make a decision, name at least one backup guardian issues you need to think about. in the event your first choice dies, becomes disabled or simply changes his or her mind. Appointing a guardian Avoiding probate If you have minor children, appointing a guardian for them in your will may be the single most impor- Estate planning can also help you avoid probate. tant estate planning decision you’ll make. If you Probate is a court-supervised proceeding for estab- don’t name a guardian, then in the event of your lishing the validity of your will, valuing your estate, untimely death a court will make the decision for paying certain expenses and distributing your assets4
to your heirs. Not only can probate be expensive your values with your heirs and influence theirand time consuming, but it also exposes your finan- behavior. For example, you can design a trustcial affairs to public scrutiny. that provides your child with a financial safety net but also offers incentives to lead a responsible,You can avoid probate by using a revocable “living” productive life.trust — except in certain limited circumstances.Further, use of beneficiary designations and other You can condition trust distributions on virtuallytechniques that allow assets to be transferred any criteria you wish, such as graduating from col-directly to your heirs outside your will can elimi- lege, staying gainfully employed, or simply reach-nate the necessity of a probate estate. ing a certain age. One common technique is to link trust distributions to beneficiaries’ earnings — theProtecting your assets more money they make on their own, the more they receive from the trust.Many estate planning techniques can protect yourassets against creditors’ claims (both your creditorsand those of your family members). Asset protec-tion is important regardless of the potential for You can condition trustestate tax liability. distributions on virtuallySimple asset-protection techniques include trans- any criteria you wish, suchferring assets to family members, titling propertyin a manner that avoids certain claims, and mak- as graduating from college,ing contributions to qualified retirement plans.More sophisticated techniques include domestic or staying gainfully employed, oroffshore asset-protection trusts and family limited simply reaching a certain age.partnerships.(To learn about a strategy to protect assets from Keep in mind, however, that this approach canyour heirs’ creditors, see “Are your loved ones’ penalize heirs who make less money yet leadinheritances protected?” on page 6.) lives you’d be proud of. One possible solution is to outline general criteria — both financialShaping your legacy and nonfinancial — for distributing trustMoney can be a powerful motivator. Regardless of funds and let the trustee determine whetheryour estate tax situation, you may want to share your heirs have met them. Plan now The $5 million exemption may make estate taxes seem like a remote possibility. But keep in mind that, unless Congress intervenes, the exemption amount will drop to $1 million beginning in 2013. So you need to be prepared for that contingency. Even if you’re confident that Congress will make the $5 million exemption permanent, however, the nontax issues are at least as important as — and perhaps more important than — reducing taxes. D 5
Are your loved ones’ inheritances protected? Add spendthrift language to a trust to safeguard assets P Protecting assets from creditors is a critical aspect of estate planning, but you need to think about more than just your own creditors: You also need to consider your heirs’ creditors. Adding spendthrift Also, if your child predeceases his or her spouse, the spouse generally is entitled by law to a significant portion of your child’s estate, including property you left the child outright. In some cases, that may language to a trust benefiting your heirs can help be a desirable outcome. But in others, such as second safeguard assets. marriages when there are children from a prior mar- riage, a spendthrift trust can prevent your child’s Spendthrift language explained inheritance from ending up in the hands of his or her spouse rather than in those of your grandchildren. Despite its name, the purpose of a spendthrift trust isn’t just to protect profligate heirs from themselves. Although that’s one use for this trust type, even the most financially responsible heirs Despite its name, the purpose can be exposed to frivolous lawsuits, dishonest of a spendthrift trust isn’t just business partners or unscrupulous creditors. A properly designed spendthrift trust can protect to protect profligate heirs from assets against such attacks. themselves. It can also protect your loved ones in the event of relationship changes. If one of your children A variety of trusts can be spendthrift trusts. It’s just divorces, your child’s spouse generally can’t a matter of including a spendthrift clause, which claim a share of the trust property in the divorce restricts a beneficiary’s ability to assign or trans- settlement. fer his or her interest in the trust and restricts the rights of creditors to reach the trust assets. Additional considerations It’s important to recognize that the protection offered by a spendthrift trust isn’t absolute. Depending on applicable law, it may be possible for government agencies to reach the trust assets — to satisfy a tax obligation, for example. Generally, the more discretion you give the trustee over distributions from the trust, the greater the protection against creditors’ claims. If the trust requires6
Experience. Responsiveness. Value.At Shumaker, we understand that when selecting a law Estate planning is a complex task that often involves relatedfirm for estate planning and related services, most clients areas of law, as well as various types of financial services. Ourare looking for: clients frequently face complicated real estate, tax, corporate and pension planning issues that significantly impact their A high level of quality, sophistication, and experience. estate plans. So our attorneys work with accountants, financial planners and other advisors to develop and implement A creative and imaginative approach that focuses on strategies that help achieve our clients’ diverse goals. finding solutions, not problems. Shumaker has extensive experience in estate planning Accessible attorneys who give clients priority and related areas, such as business succession, insurance, treatment and extraordinary service. asset protection and charitable giving planning. The skills Effectiveness at a fair price. of our estate planners and their ability to draw upon the expertise of specialists in other departments — as well asSince 1925, Shumaker has met the expectations of clients that other professionals — ensure that each of our clients has arequire this level of service. Our firm offers a comprehensive comprehensive, effective estate plan tailored to his or herpackage of quality, experience, value and responsiveness with particular needs and wishes.an uncompromising commitment to servicing the legal needsof every client. That’s been our tradition and remains ourconstant goal. This is what sets us apart. Shumaker, Loop & Kendrick,LLP We welcome the opportunity to discuss your situation and provide the services required to help you achieve your estate planning goals. Please call us today and let us know how we can be of assistance.Charlotte Columbus Sarasota Tampa ToledoFirst Citizens Bank Plaza Huntington Center 240 South Pineapple Ave. Bank of America Plaza North Courthouse Square128 South Tryon Street 41 South High Street 10th Floor 101 East Kennedy Blvd. 1000 Jackson StreetSuite 1800 Suite 2400 Sarasota, Florida Suite 2800 Toledo, OhioCharlotte, North Carolina Columbus, Ohio 34236-6717 Tampa, Florida 43604-557328202-5013 43215-6104 941.366.6660 33602-5151 419.241.9000704.375.0057 614.463.9441 813.229.7600 www.slk-law.comThe Chair of the Trusts and Estates Department is responsible for the content of The Estate Planner. The material is intended foreducational purposes only and is not legal advice. You should consult with an attorney for advice concerning your particular situation.While the material in The Estate Planner is based on information believed to be reliable, no warranty is given as to its accuracy or completeness. Conceptsare current as of the publication date and are subject to change without notice.IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoidany penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.