Welcome AAIP Members

Sheraton AirportTempe, AZ

March 16, 2013

Agenda

• 11:00 – 12:00 - Current Federal Estate Tax Law and Estate Planning post ATRA

• 12:00 – 12:15 - Questions• 12:15 – 12:30 - Other Trusts• 12:30 – 12:45 - Document Automation• 12:45 – 1:00 - Questions

Current Federal Estate Tax Law and

Estate Planning

• On January 1, 2013, President Obama signed into law The American Taxpayer Relief Act of 2012 (“ATRA”), bringing closure to the main tax aspects of the so-called “fiscal cliff” negotiations that had been ongoing since the November elections.

Since January 1, 2013, among its many tax provisions, ATRA makes permanent the $5.0 million gift, estate, and GST tax exemption amount that was put in place temporarily for 2011 and 2012, plus inflation adjustments going forward [the current adjustment for 2013 is $250,000 per person.

For married couples in 2013, the aggregate exemption will be twice this amount (i.e., $10.5 million)]. Future years can also have similar inflation adjustments.

The gift tax is still unified with the estate tax; a unified estate and gift tax exemption means the $5.25M threshold is applied to total transfers, whether by gift during lifetime or by inheritance on death.

There is also an inflation adjustment to increase the annual gift tax exclusion from $13,000 to $14,000 per donee (again, for married couples, the annual gift exclusion is now double this amount - $28,000 for 2013).

The 2012 Act also provides for a flat 40% tax rate for any transfers in 2013 and future years that exceed the exemption amount.

ATRA makes the new laws “permanent” because there is no sunset provision in the law that would cause the current rules to expire. The 2002 law was scheduled to sunset at the end of 2010. Similarly, the 2010 extension was scheduled to sunset at the end of 2012.

But a “permanent” change does not mean the law will never change.

The word “permanent” really means “until they change it next time!”

Notably, ATRA also makes permanent the “portability” concept introduced in the Tax Relief Act of 2010.

“Portability”

“Portability”

Generally, “portability” allows a surviving spouse to

elect to take advantage of the unused portion of

the estate tax exclusion of his or her predeceased

spouse, thereby providing the surviving spouse with

a larger exclusion amount.

“Portability”

NOTE: The “deceased spousal exclusion amount” is

available to the surviving spouse only if an election

is made on a timely filed estate tax return for the

deceased spouse (even if an estate tax return would

otherwise not be required).

Example

Assume that Husband dies in 2013, leaving $1M to his daughter and the balance of his estate of $3M to Wife (no tax is due). An election is made on Husband’s estate tax return to permit Wife to use Husband’s unused exemption. Thereafter, Wife’s exemption is now $9.5M (her $5.25M basic exemption plus the $4.25M of Husband’s unused exemption), which she may use for lifetime gifts or for transfers at death.

The biggest argument in support of portability

is that it will prevent married couples from

having to create "costly" estate plans that

contain "complex" trusts.

But not so fast! There are still plenty of reasons why married couples should consider Trust planning and why unwed couples may need it too; portability is really a “get out of jail card” for those who don't do anything or if the totally unexpected should occur. There are a number of reasons for married clients to still create an estate plan which creates a trust or trusts after the first death:

PLANNING

• Planning to “lock-in” the full exemption

Planning to “lock-in” the full exemption

Having an exemption trust will protect the full $5M amount if one spouse dies and the Democrats are later successful in "rolling-back" the exemption to $3.5. Portability may also be lost if the surviving spouse remarries and is later widowed again.

• Planning to “lock-in” the full exemption• Planning for appreciation

Planning for appreciation

Funding an “exemption trust” also protects appreciating assets from estate tax at the survivor’s death.

• Planning to “lock-in” the full exemption• Planning for appreciation• Planning for blended families and/or

“control”

Planning for blended families and/or “control”

For a second/third marriage (or even for a first marriage), if one or both of the clients is concerned with the survivor being able to change the beneficiaries (e.g., remarriage, separate children, etc.), the irrevocable trust is still necessary (even when there are no estate tax issues).


“control”• Providing creditor protection for the

surviving spouse

Providing creditor protection for the surviving spouse

Creating an irrevocable trust at the first death provides asset protection from creditors, lawsuits and/or Medicaid “spend-down”. In addition, any assets owned by an irrevocable trust will be protected from a divorce settlement if the surviving spouse remarries and then later divorces.



surviving spouse• Planning for state estate taxes

Planning for state estate taxes

Currently, there are 16 states (plus the DC) which impose a separate state estate tax, so trust planning may be necessary in order to “double” the state exemption and defer payment of state estate taxes until the death of the surviving spouse (so far, no state with an estate tax has adopted the concept of “portability” for the unused exemption of the first to die). Even if the client resides in a state currently without a separate estate tax, that state may subsequently elect to impose a tax or the survivor could later move to a state which does have a separate state estate tax (e.g., move to be closer to children/grandchildren).



surviving spouse• Planning for state estate taxes• Planning for the “generation-skipping tax”

Planning for the “generation-skipping tax”

Portability does not apply to the GST tax, so in order to fully leverage the GST exemptions of both spouses for GST trust planning, it will still be necessary to create a trust at the first spouse’s death. The so-called “Dynasty Trusts” are becoming increasingly popular.



surviving spouse• Planning for state estate taxes• Planning for the “generation-skipping tax”• Planning for same sex or unwed couples

Planning for same sex or unwed couples

Until same sex marriage is recognized by the federal government, same sex couples will need to use trust planning in order to be able to take full advantage of the exemption (state and federal) at both deaths (and the same goes for unwed couples).

Problems with “Portability”• No planning to “lock-in” the full exemption• No planning for appreciation• No planning for blended families and/or “control”• No creditor protection for the surviving spouse• No planning for state estate taxes• No planning for the “generation-skipping tax”• No planning for same sex or unwed couples

WHAT DOES THIS ALL MEAN?

As most of you know, there are many “types” of trusts for married couples. The correct type of trust can depend on a number of circumstances.

We have prepared a “matrix” of the different client scenarios with our recommendations for the appropriate type of estate planning trusts which may be appropriate for each scenario. Of course, this matrix also takes into account the existence of a separate state tax (when appropriate).

This “matrix” is one of the referenced documents in the list of on-line PDF files which you can download.

However, for today, let’s assume that your clients reside in Arizona (which has no separate estate tax) and neither spouse has an estate over $3.5M.

WHAT IS THE BEST FORM OF TRUST?

THE ANSWER:

A “Disclaimer Trust” OR an “Intentionally Defective Marital Deduction Trust”

THE ANSWER:

It depends mostly on the amount of control the surviving spouse should have

over the deceased spouse’s estate

What type of trust should be used if “control” is NOT an issue?

Why not a simple “probate avoidance trust”?

With the Probate Avoidance Trust, there is no flexibility – everything stays under the survivor’s control and power of revocation.

The “Disclaimer Trust”:


Again, use IF there are no issues of “control” (e.g., no separate children, etc.).


Everything goes to the survivor but the survivor can, within 9 months, disclaim any or all of the deceased spouse’s interest into an irrevocable trust.


There may be factors at the time of the first death which makes the irrevocable trust worthwhile:


“Hit the Lottery”Creditor IssuesPossible Medicaid needs for the survivor

What type of trust should be used if “control” is an issue?

What about an “A/B Trust”?

The “A/B Trust”:


•“A” Trust is the survivor’s revocable trust


•“A” Trust is the survivor’s revocable trust•“B” Trust is the irrevocable trust



Must be funded with decedent’s estate up to the exemption amount



Funded with decedent’s estate up to the exemption amount

Purpose is to keep “B” Trust out of the survivor’s taxable estate

Problems with the “A/B Trust”:


•“B” Trust is the irrevocable trust Funded with decedent’s estate up to

the exemption amount


•“B” Trust is the irrevocable trust Funded with decedent’s estate up to

the exemption amount If control is an issue and the

decedent’s estate exceeds the exemption, the balance goes to the survivor


•“B” Trust is the irrevocable trust Purpose is to keep “B” Trust out of the

survivor’s taxable estate



survivor’s taxable estate This will lose the “stepped-up basis”

on the assets in the “B” Trust at the survivor’s death

The “step-up” means that inherited property receives a new cost basis equal to the property's fair market value on the date of the decedent's death. In other words, the heirs can sell the inherited assets and pay no capital gains tax.



survivor’s taxable estateONLY ASSETS INCLUDED IN THE

TAXABLE ESTATE ARE ELIGIBLE FOR THE STEP-UP

The “Intentionally Defective Marital Deduction Trust”:


•Creates an irrevocable trust for all of the decedent spouse’s assets


•Creates an irrevocable trust for all of the decedent spouse’s assets

SOLVES THE CONTROL ISSUE


•Creates an irrevocable trust for all of the decedent’s assets•“Intentionally” designed to be included in the survivor’s taxable estate


•“Intentionally” designed to be included in the survivor’s taxable estateSOLVES THE STEPPED-UP BASIS ISSUE --NOW THE ENTIRE ESTATE RECEIVES A

STEP-UP AT THE SECOND DEATH


•Creates an irrevocable trust for all of the decedent’s assets•“Intentionally” designed to be included in the survivor’s taxable estate•Has “disclaimer” option to fund “Exemption Trust” if needed.


•Has “disclaimer” option to fund “Exemption Trust” if needed.

PROTECTS IF THE CLIENTS HIT THE LOTTERY!

As mentioned, besides “control”, there are other advantages to creating an Irrevocable Trust at the first death:

Other advantages to creating an Irrevocable Trust at the first death:

•Creditor Protection



•Medicaid Planning



•Medicaid Planning

•Protects assets from a divorce if the survivor remarries

QUESTIONS

15 MINUTES

OTHER REVOCABLE TRUSTS

IRA BENEFICIARY TRUST


It is now common to designate the revocable living trust (“RLT”) as the beneficiary of an IRA (or as the contingent beneficiary if the IRA owner is married)


To be a permitted beneficiary, the RLT must have the proper language to be a “conduit trust”.


A “conduit trust” must use the oldest age of the current beneficiaries for the calculation of the RMD’s for all of the beneficiaries.


A “conduit trust” must distribute the RMD’s to each beneficiary regardless of other circumstances existing at the time of death (e.g., disability, creditor issues, divorce, etc.)


To provide maximum benefits and flexibility, there is now a new type of trust.

IRA BENEFICIARY TRUSTTo provide maximum benefits and flexibility, there is now a new type of trust:

The IRA Beneficiary Trust


Features


Features:•The RMD for each beneficiary is calculated on the age of each beneficiary

IRA BENEFICIARY TRUSTFeatures:•Up to September 30th of the year following the IRA owner’s death, an election can be made to convert a beneficiary’s trust from a “conduit trust” to a discretionary “accumulation trust”

IRA BENEFICIARY TRUSTFeatures:•If a beneficiary’s trust is converted, the “potential beneficiaries” of that trust can be limited to a designated class.


Features:•If the IRA owner is married and does not want the spouse to be able “roll-over” the IRA (i.e., name new beneficiaries), the Trust can also be configured to hold the IRA for the benefit of the spouse.


•This is an extremely valuable estate planning tool for any client with IRA assets over $150,000!

NFA FIREARMS TRUST

NFA FIREARMS TRUST

Often referred to as a “Gun Trust”

NFA FIREARMS TRUST

“NFA” is the “National Firearms Act”

NFA FIREARMS TRUST

Most handguns and rifles are not restricted

NFA FIREARMS TRUST

Those that are, such as automatic weapons, “short-barreled shotguns, silencers, grenades,

etc., are referred to as “Title II Firearms” or “restricted firearms”.

NFA FIREARMS TRUSTThe Key Benefits of the NFA Firearms Trust are:

NFA FIREARMS TRUSTThe Key Benefits of the NFA Firearms Trust are:After the trust is created, it is not filed with any city, county or state government entity (other than a copy being sent to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATFE”) with the Application. The trust and your client’s name do not show up on any government database other than the tax rolls of the BATFE and this information is protected from most disclosure requests.


Unlike an application by an individual,•The Trust is not required to submit fingerprint cards;•The Trust is not required to submit a photograph; and,•The Trust is not required to have the chief law enforcement officer (“CLEO”) approve the Application.


Unlike a corporation, LLC or other entity form,•Once the trust is created, there are no annual fees;•There is no requirement for a trust to file annual tax statements; and,•There are no requirements for annual meetings or reports.


•The Trust may be used to purchase and own as many NFA regulated (Title II) firearms as desired.

•Multiple individuals can be listed (or added) as the trustees, thus allowing more than one person to have the legal right to the possession and use of the firearms and thus protecting family members from inadvertent (but harshly dealt with) illegal possession of a regulated weapon.


•The trust protects in the event of incapacity; this protects the conservator (or other family member) from illegally possessing items regulated by the National Firearms Act which are not registered to them.

•The trust also helps to protect the firearms assets after death. Although, any individually owned firearms will be part of the “probate estate”, the trust keeps the firearms outside of the probate process and keeps them private. The executor of the estate and the beneficiaries will also be protected because the successor trustee has the control of the firearms with specific provisions within the trust on how the NFA regulated items should be handled and transferred after death.


•If the transfer of NFA firearms becomes prohibited in the future, the trust will continue to protect the Title II items for generations to come.

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Welcome AAIP Members