Why Pay Estate Taxes ?

(or "Would you rather give a big chunk of your estate for probate costs ?")

A Little Beyond The Basics...

Who has to pay estate taxes? You will have to pay estate taxes if the net value of your estate is more than the "exempt" amount set by Congress. How much is exempt depends on when you die.

Current exemption from ordinary federal estate tax is $1.5 million per person, making a total of $3 million exemption for married couples who carefully plan ahead.  Family-owned businesses and farms that qualify can get an additional exemption.

How is the net value of my estate determined? To determine the current net value, add your assets, then subtract your debts. Include your home, business interests, bank accounts, investments, personal property, IRAs, retirement plans and death benefits from your life insurance.
How can I reduce or eliminate my estate taxes? In the simplest terms, there are three ways:

1. If you are married, use both estate tax exemptions.

2. Remove assets from your estate before you die.

3. Buy life insurance to pay remaining estate taxes.

Using Both Exemptions If your spouse is a United States citizen, you can leave him or her an unlimited amount when you die with no estate tax. But this can be a tax trap, because it wastes an exemption.

Let's say, for example, that Bob and Sue together have a net estate of $2.5 million and they both die in 2004. Bob dies first. He leaves everything to Sue, so no estate taxes are due then since there is a special estate tax exemption for the surviving spouse. When Sue dies, her estate of $2.5 million uses her $1.5 million exemption. The tax bill on the remaining $1,000,000?   About $500,000!

But if, instead, Bob and Sue plan ahead, they can use both their exemptions and pay no estate taxes. A tax-planning provision in their living trust splits their $2.5 million estate into two trusts of $1.25 million each. When Bob dies, his trust uses his $1.5 million exemption. When Sue dies, her trust uses what is needed of her $1.5 million exemption. This reduces their taxable estate to $0, so the full $2.5 million can go to their loved ones.

If you are married and qualify for the family business exemption, this arrangement may let you and your spouse leave your family much more...   tax-free.

This planning can also be done in a will, but you would not avoid probate or enjoy the other benefits of a living trust.

Removing Assets From Your Estate  A great way to reduce estate taxes is to reduce the size of your estate before you die. So, spend some and enjoy it!

Also, you probably know who you want to receive your assets after you die. If you can afford it, why not give them some assets now and save estate taxes? It can be very satisfying to see the results of your gifts - something you can't do if you keep everything until you die. Appreciating assets are usually best to give, because the asset and future appreciation will be out of your estate.

Assets you give away keep your cost basis (what you paid), so the recipients may have to pay capital gains tax when they sell.

But the top capital gains rate is only 20% (assets held at least 18 months). That's a lot less than estate taxes (37-55%) if you keep the assets until you die.

Some of the most commonly-used strategies to remove assets from estates are explained below. Note that these are all irrevocable, so you can't change your mind later.

Tax-Free Gifts This is easy and it doesn't cost anything. Each year, you can give up to $11,000 ($22,000 if married) to as many people as you wish. So if you give $11,000 to each of your two children and five grandchildren, you will reduce your estate by $77,000 (7 x $11,000) a year - $154,000 if your spouse joins you.  These amounts are adjusted for inflation.

You can give more, but it will use up some of your estate tax exemption. That's because it's a combined gift and estate tax exemption. While you're living, its a gift tax exemption; after you die, its an estate tax exemption.

Charitable gifts are unlimited. So are gifts for tuition and medical expenses if you give directly to the institution.

Irrevocable Life Insurance Trust (ILIT) An easy way to remove life insurance from your estate is to make an ILIT the owner of the policies. As long as you live for three years after the transfer, the death benefits will not be in your estate. Usually the ILIT is also beneficiary of the policy. So when you die, the money can provide for your spouse, children or others according to the instructions you put in the ILIT when you set it up.
Qualified Personal Residence Trust (QPRT) A QPRT lets you save estate taxes by removing your home (a substantial asset) from your estate now - yet you can continue to live there. Here's how it works.

You transfer your home to a trust for a period of time, usually 10-15 years. During this time, you continue to live in your home. When the time is up, it transfers to the trust beneficiaries, usually your children. If you wish to stay there longer, you may make arrangements to pay rent. If you die before the trust ends, your home will be included in your estate, just as it would without a QPRT.

There's more. A QPRT "leverages" your estate tax exemption.

Since your children will not receive the house until the trust ends, its value as a gift is reduced. For example, if the current value of your home is $250,000 and you put it in a QPRT for 15 years, its value for tax purposes could be as little as $75,000. That leaves much more of your exemption for other assets.

Grantor Retained Annuity Trust (GRAT) and Grantor Retained Unitrust (GRUT) These are much like a QPRT. The main difference is that a GRAT or GRUT lets you transfer income-producing assets (stock, real estate, a business) to a trust for a set number of years, removing it from your estate, and still receive the income. (If the income is a set amount, the trust is called a GRAT. If the income fluctuates, it's called a GRUT.)

When the trust ends, the assets will go to the beneficiaries (usually your children). Since they will not receive it until then, the value of the gift is reduced. If you die before the trust ends, the asset will be in your estate.

Family Limited Partnership (FLP) A FLP lets you reduce estate taxes by transferring assets like a family-owned business, farm, real estate or stocks to your children now - yet you keep full control.

For example, you and your spouse can set up a FLP and transfer assets to it. In exchange, you receive partnership shares. You keep the general partner shares and give limited partner shares to your children, removing up to 99% of the value of the assets from your estate.

As general partner, you have full control. Limited partners (your children) have none. Their shares cannot be sold or transferred without your approval. And because there is no market for these shares, their value is highly discounted. So you transfer the assets to your children at a reduced value - with no loss of control. This is a highly technical and changing area of law and definitely requires the help of your attorney.

Charitable Remainder Trust (CRT) A CRT lets you convert a highly appreciated asset (like stocks or investment real estate) into a lifetime income without paying capital gains tax when the asset is sold. It also reduces your income and estate taxes, and lets you benefit a charity that has special meaning to you.

With a CRT, you transfer the asset to an irrevocable trust. This removes it from your estate. You also get an immediate charitable income tax deduction.

The trust then sells the asset at market value, paying no capital gains tax, and reinvests in income-producing assets. For the rest of your life, the trust pays you an income. Since the principal has not been reduced by capital gains tax, you can receive more income over your lifetime than if you had sold the asset yourself. After you die, the trust assets go to the charity you have chosen.

Charitable Lead Trust (CLT) A CLT is just about the opposite of a CRT. You transfer an asset to the trust, which reduces your estate. But instead of paying the income to you, the trust pays it to a charity for a set number of years or until you die. Then the trust assets will go to your spouse, children or other beneficiaries.
Buying Life Insurance Often referred to as "estate replacement insurance", buying life insurance can be an inexpensive way to pay remaining estate taxes. This can be done without an ILIT, however, you must consider the amount of tax increase allocable to the insurance money itself.

Also, the three-year rule mentioned above does not apply to new policies. Beware, owning the policy will increase your taxable estate and estate taxes. To keep the death benefits out of your estate, set up an ILIT and have it purchase the policy for you.



  Summing it up...
 

        REDUCING OR ELIMINATING ESTATE TAXES


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without the express prior written permission of Rex Alan Lowe, Esq. ©2004.


If you've read this far, you're obviously serious and want to know more about
estate planning with a trust.

Please feel free to leave email with any questions or

contact the office directly for a free consultation.

 

Rex Alan Lowe, Attorney at Law
Estate Planning, Trust & Probate Law
630 South El Camino Real, Suite A
San Clemente, California  92672-4200
949.498.3045

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Last updated on August 24, 2004