The A/B Tax Trap (Basis Step-Up, Part II)

Welcome back! So last week we reviewed the basics of basis. This week, I’ll explain how your fancy trust, well-crafted to save you lots of estate tax back in the 1990s or 2000s, could actually end up costing your heirs money, due to changes in the law over the past few years. It all comes down to basis (which is why we went over how that works, in the last post.)

You see, a few years back, the federal Estate Tax ‘kicked in’ when someone died leaving a relatively modest estate (in 2001, $675,000; even less before that).  The amount that each person could pass at death without paying tax (what we call the “Exemption Amount”) increased a few times from 2001-2008 (when it was $2 million), but of course real estate values also increased dramatically over that time period, and many people built up substantial retirement accounts such as 401(k)s and IRAs.  Remember, too, that for estate tax purposes, we count not only your real estate and investments, but also any retirement accounts and the proceeds of life insurance payable on your death.  While there was (and still is) usually no tax on assets passed to a surviving spouse,* if all of the dying spouse’s assets (and the dying spouse’s half of joint assets) go to the surviving spouse, then when that survivor dies, his or her estate will include ALL of the couple’s assets.  This could easily cause the survivor’s estate to exceed the lower tax thresholds in effect in the 1990s and early 2000s. And the tax – with a maximum rate of 55% in 2001, declining to 45% in 2009 – was nothing to sneeze at!

So to be sure to minimize these taxes for couples who might be subject to them, estate planners came up with something called an “A/B Trust Plan,” which works like this: When the first spouse dies, instead of their entire estate passing to their surviving spouse, a portion of the estate equal to the Exemption Amount in effect in that year (for example, $675,000 if they died in 2001) is placed into a “B” (or “Bypass” or “Credit Shelter”) Trust, and the rest passes to the surviving spouse (or into an “A” or “Marital” Trust, hence the “A/B” designation). The “A” property would be included in the surviving spouse’s estate (this is necessary to avoid paying tax on it at the first spouse’s death), but the property in the “B” trust, though available for the surviving spouse to use, is NOT included in his or her estate at death (this is accomplished by the design of the “B” trust). This helped to keep the survivor’s estate below the Exemption Amount (or if that’s not possible, as low as possible), by having some of the assets of the first dying spouse “bypass” the estate of the second spouse to die.

Now, however, with the “Exemption Amount” much higher – for 2014, it’s $5.34 million per person – and the ability to increase it further, even DOUBLE it, for a surviving spouse using something called “portability,” the “bypass” procedure is almost always unnecessary, since there will be no estate tax on the second spouse’s death even without it.  But, you may ask yourself, if the assets are simply taken out of the surviving spouse’s estate for tax purposes, then what’s the harm? Why do we have to mess with it?

Well, consider this: anything that is NOT in the surviving spouse’s estate when he or she dies (which, for most couples today with an A/B Trust Plan, will be one-half of their joint assets – perhaps more if the spouse who owned the bulk of the property died first), does NOT get a ‘step-up’ in tax basis at the surviving spouse’s death!  So if the couple had a home, or other assets, that have appreciated in value, and are likely to continue to appreciate in value after the first death, and half of those assets are owned by each spouse, then on the first spouse’s death, his or her half of the assets will go into the “B” Trust. If the surviving spouse then lives for 10 or 20 more years, when he or she eventually dies, the children or other beneficiaries will get a ‘step-up’ in basis on only HALF of the couple’s assets – the half that was in the “B” trust will get no step up. Since it is often more likely that the family home will be sold by the children (or other recipients) after BOTH spouses have died – and also that the children will not have lived in the home for a sufficient time to be able to exclude gain using the ‘primary residence’ exclusion – this could result in a large capital gains tax bill for the children, when the home is sold after both parents have died.

Bottom line: in many cases, the sole reason for using an “A/B” trust plan, back in the 1990s and early 2000s, was to avoid estate taxes at the second spouse’s death. Now, due to changes in the tax laws and increases in the exemption amount, the “A/B” split is often not needed to avoid estate taxes, and it can actually cause a substantial increase in income taxes for the beneficiaries after the second spouse’s death. (It can also create unnecessary administrative complexity for the surviving spouse; however, an A/B Plan can nevertheless be warranted if the estate is fairly large, and/or for certain non-tax reasons.) So if you have an old trust plan (whether a single, joint trust, or two separate, individual trusts), you should have it reviewed TODAY to see if a change could save your beneficiaries a LOT of money!

* If the survivor is a U.S. citizen; different rules apply to non-citizen spouses.

A Trap for the Unwary

A tax trap, that is. If you (1) are married, (2) have a small or moderate-sized estate (under $10 million), and (3) created a trust-based estate plan at any time in the past several decades, chances are that plan could end up costing your children or other beneficiaries a LOT in unnecessary taxes after you die.  Now, this probably does not apply to you if you live in one of a handful of states that imposes a state estate tax with a low exemption amount (CT, DC, ME, MD, MA, MN, NJ, NY, OR, RI, and TN all have exemption amounts for 2013 that are $2 million or less), in which case your planning has probably been designed to minimize those taxes, as well as the Federal estate taxes, and that may save you more in the long run.  But if you live in one of the many states that has no state estate tax (a list of states with an estate tax can be found here), or has an exemption greater than the value of your estate, keep reading to find out why your plan may be in need of a critical update.

Five Things to Consider Now

The end of the year approaches, and pretty soon we’ll all be busy with entertaining, shopping, and other holiday pursuits. So now’s the time to think about things that you might want to set in motion to provide a little fiscal relief for the rest of 2012 and 2013.

1. Look at your income for 2012. Is this a slow year? If so, think about things that you might have been putting off or avoiding because of their negative tax consequences. If your income is low this year, or you have a lot of deductions, maybe now is the time to take the tax hit from converting some IRA funds to Roth-IRA status, or withdrawing them entirely (if  you would be needing those funds in the near future anyway). If your income is looking low for 2012, consider shifting some deductions into 2013, by putting off expenditures until after the first of the year. Conversely, if it’s looking high for the year, think about additional deductions you might be able to squeeze into 2012, by purchasing items or pre-paying for rent or services in November or December.

2. Consider using the huge estate and gift unified tax exemption that is going to expire at the end of this year. If your estate is over $5 million, or likely to be that large when you die, then now is the time to shift some of those funds out of your estate to your children or other beneficiaries. You don’t have to give them a big check – you can place the funds into irrevocable trusts, that will protect the assets and allow them to be prudently managed, with not only their current value but all future appreciation out of your estate permanently.

3. Update your estate plan, if it hasn’t been done lately. With the extreme uncertainty over what the estate and gift tax laws will look like for 2013, you want to be sure that your planning is flexible enough to adapt to changing laws and rules, and still provide the best results for you and your family.

4. Plan to have a ‘heart-to-heart’ with your family. Why not take time over the holidays, when everyone is together and in a relaxed frame of mind, to discuss your estate planning with family members? It can be a difficult subject to broach, but a pleasant family gathering can be the perfect time to spend a little time explaining to your children the steps you’ve taken to ensure that things go smoothly if something should happen to you. Everyone’s catching up, so make sure they’re caught up on this aspect of your life too. (One way to bring up the subject is to tell your adult children that you’ve made plans for them, and ask if they’ve done the same for their families. Children can use this approach with their parents as well.)

5. Read up on the new 3.8% ‘surtax’ on certain kinds of investment income, and determine the effect it will have on your overall tax bill. Consider whether shifting some of your assets to a different investment vehicle, or converting some assets to a Roth IRA, might eliminate or reduce the ‘bite’ of that extra tax. Here’s one article that provides some ideas, to get you started.

Zombie Tax – Update

Good news on the “Zombie Tax” front. This summer, the Legislature passed a new law changing the Hawaii death tax laws. Honestly, I haven’t read the law in its entirety (watch this space for a more in-depth update), but basically it changed the amount that can be passed free of Hawaii state estate tax from a fixed, $3.5 million, to a figure that tracks the Federal exemption (which is now $5.12 million, set to return to $1 million on January 1, 2013). So while the Zombie Tax is still (un)dead, at least it is a little easier to figure out, and plan for – you will either have a taxable estate (under both Federal and State law) or you won’t.

Unless you are in a civil union, of course – in which case you can’t claim the unlimited Federal marital deduction, but can claim an unlimited marital deduction for the purpose of calculating the Hawaii estate tax. Hopefully they’ll fix that soon, too – I heard that DOMA was just declared unconstitutional by the Second Circuit, looks like it’s headed to SCOTUS.

The Zombie Tax

Years ago, Hawaii had an estate tax, but it was a “pickup” tax – the amount of the tax was offset by an equal credit against Federal tax, so it was not “felt” by the heirs as a separate tax. Then, the credit was eliminated, and the tax went with it.  But in 2010, it rose from the dead, like a zombie, and while it’s not hungry for brains, it IS hungry for a nice, juicy piece of the estate you were hoping to leave to your kids and other beneficiaries.  Here are a few tidbits about this ‘zombie tax’:

– The tax ‘kicks in’ when your total estate (which includes all of the property and assets you leave behind, including your retirement accounts and often the full proceeds of life insurance payable on your death) is valued at $3.5 million or more.

– Although Hawaii has no gift tax, due to a quirk in the way the law is written, your heirs may still end up paying Hawaii estate tax on your lifetime gifts, after you die. So you may have to include those gifts when determining whether the tax will apply to your estate.

– The Federal estate tax now has an exemption of $5 million per person (until 12/31/2012).So, you may not have an estate that is taxable by the IRS, but it may still be taxed by the state of Hawaii.

– Although (until 12/31/2012, if not extended) you may be able to use your deceased spouse’s unused FEDERAL exemption (that is, if he or she used less than the full $5 million exemption when he or she died, before you), there is no such “portability” of the Hawaii exemption. So if a couple does not plan properly, some of their total $7 million Hawaii exemption ($3.5 mil/spouse) could be wasted, and tax paid unnecessarily.

– If you (and your spouse together, if you’re married) have property worth more than $3.5 million, and you have will(s) or trust(s) that were prepared before 2010, your heirs may end up having to pay a hefty Hawaii estate tax if you don’t have your documents REVIEWED and UPDATED to plan for this ‘zombie’ tax.

– Properly drafted documents can help you to avoid any tax (even the zombie tax) when the first spouse dies, and to use both exemptions fully, to avoid paying any unnecessary tax.

– There are ways to avoid or minimize the taxes paid (both Federal and State), even you have a very large estate.

So, if you have not had your documents reviewed by an experienced estate planner in the past two years, you should do it now – or the Zombie Tax may devour your estate!

Is the IRS your favorite charity?

(… or, How to save some of those pesky taxes on IRA conversions, while also benefiting the charities of your choice.)

If you converted some or all of your IRA accounts to Roth IRAs in 2010, or plan to do so this year or in the future, you will be looking at a hefty add-on to your income tax bill in the near future. If you converted in 2010, and accepted the default of deferring the income recognition to 2011 and 2012, you may not have been thinking about those checks you will have to write to the IRS in 2012 and 2013.  But alas, time marches ceaselessly forward, and you’ll soon be feeling that deferred pain.

So, what if I told you that instead of paying all that cash over to the IRS, you could donate a chunk of it to your favorite charity instead?  That you could send it to the Red Cross to help with the Japan relief efforts, to the SPCA to save little puppies and kittens, to an organization that fights cancer, AIDS, or another nasty disease? Now maybe with our deficit being what it is, you might feel OK about sending your check to the IRS. But if you’d rather support your church, school or another tax-exempt charity over the next several years, while getting a hefty income tax deduction now to offset that pesky Roth income, read on.

Death and Taxes

Two things you can’t avoid, or so they say.  We’ll all deal with death someday, and most of us will deal with some kind of tax – if only sales tax. But what’s worse than having them both come together?  First, you lose someone you love; then you have to write a big check to the government because your parent, spouse or other relative actually cared enough to leave you something to help you get by, or to make your life a little easier.

Fortunately, most of us haven’t had to worry about estate or inheritance taxes – for years now, they have only affected those who are pretty well-off.  In 2009, only those with taxable estates over $3.5 million had to pay a tax, and for several years before that, the limit was $2 million. In Hawaii, there has been no estate tax at all since 2005, and even then it didn’t “hurt,” because there was a Federal credit that offset the entire tax paid.  But all that is going to change in 2011. (In fact, some of it has changed already.)

If Congress doesn’t act before the end of the year, beginning on January 1, 2011, a Federal estate tax will be owed by anyone leaving a taxable estate of just