Waiting for Estate Tax Repeal: What Do You Tell Your Clients in the Meantime?
In the 1988 film “The Boost,” Lenny Brown makes a handsome living selling interests in tax-shelter limited partnerships to affluent investors. He has the world by the tail until the day Congress closes the tax-shelter loophole: Almost overnight, demand for Lenny’s limited partnership interests disappears. Deprived of his livelihood by the stroke of a pen, Lenny loses everything. Has Congress, by repealing the estate tax as a part of the Economic Growth and Tax Relief Act of 2001 (the “act”), consigned estate planning lawyers to a similar fate? It does not appear likely.
Repeal will not occur, if at all, until 2010. With four Congressional elections and two Presidential elections between now and then, many believe it unlikely that the law will retain its present form for long. The time for repeal could be postponed; the repeal of the tax may itself be repealed; or, perhaps, Congress will fail to reenact the repeal of the tax, and the estate tax, in its present form, will rise from the ashes in 2011. The only thing that is certain is uncertainty.
This article is not intended to be a primer on the new transfer tax laws, including the “technical” changes the act made to the generation-skipping transfer tax. 1 Instead, it discusses how the uncertain fate of the transfer taxes during the next several years may affect the advice lawyers give to their estate planning clients. In many cases, planning techniques that made sense before the act will continue to make sense for the same reasons in today’s environment, and this is especially true for techniques that have primarily nontax benefits. In other cases, however, the act will force planners to rethink techniques heretofore used almost as a matter of course. The difficult task is to be able to tell the difference, and this article attempts to make that task a bit easier.
Should Your Clients Be Making Gifts Anymore? (and If So, How?)
Lifetime gifting of assets has traditionally been a tax-preferred way to transfer wealth. The act now appears to create a disincentive to make gifts. With the increasing estate tax exemption amount, it is now possible to pass more assets at death without having to pay estate taxes. For the next several years, until the slated implementation of the modified carryover basis rules, all appreciated assets in a decedent’s gross estate will receive a step-up in basis as under the traditional rules. Thus, for persons whose estates will not be subject to the estate tax, holding on to assets until death will mean that post-death capital gains taxes can be greatly reduced or eliminated at no estate tax cost.
Nevertheless, for a number of reasons, the act should not cause planners to abandon the lifetime gifting as an estate planning technique. Elderly clients may not live to see repeal or the highest exemption amount. Cynical clients, on the other hand, may not believe the estate tax repeal is certain or permanent. Finally, some clients make gifts for reasons entirely separate from taxes. It could be argued that 2002 will be the best year in a long time for making lifetime gifts. The gift tax exemption will increase by $325,000 from the year 2001 level. Additionally, the value of commonly gifted assets such as publicly traded stocks is low relative to the market highs a year or so ago, so that the value of the gift for tax purposes is lower and the potential for shifting post-gift appreciation out of the donor’s estate is higher.
In today’s uncertain estate and gift tax environment, flexibility is the watchword. For example, an irrevocable trust set up to receive gifts from the grantor could provide that an independent trustee (by definition, someone other than the grantor) has the discretion to return the assets that the grantor transferred to the trust only if 1) the estate tax is repealed; 2) the estate tax rates drop below a certain threshold rate; or 3) there would be no estate tax imposed on the grantor’s estate if he or she died owning the assets in the trust. Will the assets in this Crummey trust be included in the grantor’s gross estate if he or she dies before2 the occurrence of the triggering event?
The trust agreement cannot direct the independent trustee to return the trust assets under any of these circumstances. Section 2036(a)(1) of the Internal Revenue Code causes the inclusion of any property as to which the transferor retained at his or her death the “right. . . to designate the person or persons who shall possess or enjoy the transferred property or the income therefrom.” The Treasury Regulations provide that “it is immaterial. . . whether the exercise of the power was subject to a contingency beyond the decedent’s control which did not occur before his death.”3 However, if the event that triggers the exercise of the discretion to return the property to the grantor is beyond the grantor’s control, the grantor should not be considered to have retained any power or right that would cause the trust assets to be taxed in his or her estate. It is the retention, and not the existence, of the power that causes the application of Code §2036.
The triggering event of “no estate tax due on the grantor’s estate if grantor owned the trust assets” may be risky because the occurrence of that triggering event is within the grantor’s control. The grantor could give away assets to drive the value of his or her estate below the estate tax threshold amount, or the grantor’s testamentary documents could dispose of all of his or her assets to a spouse or to charity, thereby zeroing out the taxable estate with deductions. If the grantor could be thought thereby to have retained a power to affect the enjoyment of the transferred property to a degree sufficient to cause the application of Code §2036(a) or 2038(a), all or a portion of the trust assets would be included in the grantor’s gross estate at his or her death. Such a result would frustrate the goal of gifting the assets out of the grantor’s estate.
Conversely, the first two contingencies are entirely outside of the control of the grantor. The contingency that triggers the discretion is in the hands of Congress and the President. The gift would be complete for federal gift tax purposes because “the donor has so parted with dominion and control as to leave him no power to change its disposition. . . . ”4 In a Revenue Ruling, the Internal Revenue Service reasoned that the transfer to the irrevocable trust at issue in the ruling was an incomplete gift because, under applicable state law, the trust assets were subject to the claims of the grantor’s creditors.5 Thus, if under Florida law the grantor’s creditors could reach the assets in the irrevocable gift trust by virtue of the trustee’s discretion to return the trust assets to the grantor under certain circumstances admittedly beyond the grantor’s control, the gift to the trust would be incomplete. As a result, all or a portion of the trust assets would be includable in the grantor’s gross estate under Code §§2036(a)(1) and 2038(a)(1).
The proposed irrevocable gift trust should be reviewed briefly in light of Florida law. It seems well settled under Florida law that “[w]here a person creates for his own benefit a trust for support or a discretionary trust, his transferee or creditors can reach the maximum amount which the trustee under the terms of the trust could pay to him or apply for his benefit, even though the trustee in the exercise of his discretion wishes to pay nothing to the beneficiary or to his creditors, and even though the beneficiary could not compel the trustee to pay him anything.”6 If the trustee’s discretion is contingent upon the occurrence of an event that has not in fact occurred at the time of the grantor’s death, then it seems that the maximum amount that the trustee, in the exercise of the trustee’s discretion, could distribute to the grantor as of the grantor’s death is nothing.
Florida case law supports this proposition. The Bankruptcy Court considered a situation in which the debtor had contributed funds for his own account to the City of Miami’s deferred compensation plan, which was administered as a trust.7 Under the terms of the trust, at the time of the litigation, the debtor could only reach the funds that he had contributed in the event of an “unforeseeable emergency,” which was defined by the terms of the plan as “extraordinary and unforeseeable circumstances arising as a result of events beyond the control of” the debtor.8 Applying Florida law,9 the Bankruptcy Court concluded that those assets could not be reached by the grantor’s creditors because the circumstances under which the grantor could reach the assets he had contributed to the retirement trust were beyond the grantor’s control. Following the court’s reasoning in Wheat, then, the assets in an irrevocable gifting trust whose terms give an independent trustee the discretion to return the trust assets to the grantor if the estate tax were repealed, or if the estate tax rates were to drop below a certain threshold, should not be subject to the claims of the grantor’s creditors if the grantor dies before the triggering event. Further, the gifts to the trust would be complete, and no part of the trust assets would be includable in the grantor’s gross estate.
In the wake of the repeal of the estate tax, there may be a perception on the part of tax-motivated clients that there is no longer a reason to make gifts. A client who can afford to live without the gifted property for the next several years, and whose only goal is to save taxes, may be attracted to a trust of the type discussed above as a way to “win” the gifting game: If taxes are still a concern, the trust assets are out of his or her estate; if taxes are not a concern, there is no need to continue to play the game after all. However, if such a client can afford to forgo the assets for a few years, he or she can probably afford to part company with those assets forever. It is far less risky to transfer the assets to a “traditional” irrevocable trust without any possibility of getting the transferred assets back. As before the act, deciding whether to make gifts boils down to this nontax essence: If a client can afford to live without an asset, consider a gift; if not, keep it.
Revise Testamentary Documents Now?
It is, in the author’s opinion, too early to start drafting documents that embody two completely different dispositive schemes: one that governs if the estate tax is applicable to the decedent’s estate, and the other that governs if there is no estate tax. Federal transfer taxes are still in a state of flux, and such a document, by attempting to respond to a legal backdrop that may or may not pertain in nine or 10 years, may be completely unresponsive to the law as it actually is when the client dies. In a perfect world, because of the unsettled state of the estate tax laws, clients would focus on their estate plans more frequently than in years past, and lawyers would be able to make modifications to clients’ documents knowing those documents would be revisited again in one or two years. Because the reality is sure to fall short of the ideal in many cases, preserving flexibility to respond to the changing estate tax laws is now more important than ever.
Many testamentary documents for married couples establish a credit shelter trust to be funded with the exemption amount with the balance of the first deceased spouse’s assets passing either outright or in trust to the surviving spouse to qualify for the estate tax marital deduction. The funding formulas used in such documents normally self-adjust, so that the amount by which the credit shelter trust is to be funded tracks the estate tax exemption amount as it changes from year to year. The dramatic increases in the estate tax exemption amount slated to occur over the next several years will mean that an ever-increasing amount of assets will be allocated to the credit shelter trust and an ever-decreasing amount will be allocated to the marital share.
This is probably of no great concern if the surviving spouse is the only beneficiary of both the credit shelter trust and the marital trust during the spouse’s lifetime, and if the beneficiaries of both the credit shelter trust and the marital trust after the death of the surviving spouse are the same. However, it is of potentially significant concern if the spouse is not a beneficiary of the credit shelter trust, or if both the spouse and the decedent’s children are current beneficiaries of the trust, or if the remainder beneficiaries of the credit shelter trust are not the same as the remainder beneficiaries of the marital trust. In these circumstances, simply relying on a self-adjusting “zero tax” funding formula may produce an undesired result.
In years past, most estate planners have resisted using fixed-value funding amounts that do not self-adjust (e.g., directing that the credit shelter trust be funded in all cases with $675,000). However, in another instance of the act causing estate planners to reexamine what they advise clients, in certain cases it now may be advisable to phrase the credit shelter gift in terms of the lesser of the amount produced by the self-adjusting formula or a fixed dollar amount. This would preserve the funding of the marital share, of which the surviving spouse is the sole initial beneficiary, and would be attractive where the surviving spouse’s estate would not be subject to tax even if it included the value of the marital trust.
Another approach to flexible planning is to abandon the use of funding formulas designed automatically to produce two separate trusts at the death of the first spouse to die. Instead, use of the single marital trust will ensure that, subject to the making of any necessary elections, no estate taxes are due on the death of the first spouse to die. he testamentary instrument would provide for the creation of separate trusts only if the surviving spouse or the personal representative of the decedent’s estate decides to do so. In either case, the governing instrument could provide for the creation of a single trust for the sole benefit of the surviving spouse during his or her lifetime that would, subject to the making of any necessary elections, qualify for the estate tax marital deduction as a QTIP trust. Use of the single marital trust will ensure that, subject to the making of any necessary elections, no estate taxes are due on the death of the first spouse to die. If at the death of the first spouse to die it appears that the estate tax in some form is likely to be in effect at the death of the surviving spouse so that it would be advantageous to carve out a separate trust that will not be taxed in the surviving spouse’s estate at his or her death—in other words, a credit shelter trust—a mechanism exists under the governing instrument for the creation of the trust if and to the extent that circumstances warrant.
There are at least three ways to create a credit shelter trust through such postmortem discretion. First, the personal representative could simply make a partial QTIP election as to a single trust the terms of which qualify the trust for the estate tax marital deduction.10 A fraction of the trust assets equal to the estate tax exemption amount in effect in the year of death (or some lesser amount, as determined by the personal representative) would not be subject to the election, and, therefore, would not be subject to estate tax at the surviving spouse’s death. The terms of both the elected and unelected trust would be the same, i.e., the surviving spouse would be the sole income and principal beneficiary of both trusts during his or her lifetime, entitled to all of the trust income at least annually.
Second, the governing instrument could provide that, to the extent the spouse disclaims, or refuses to accept, all or a portion of the assets in the single marital trust, the disclaimed portion will be used to fund a separate trust having terms different from the single marital trust. This accomplishes the same thing as a simple partial QTIP election in terms of taking advantage of all or a portion of the decedent’s estate tax exemption amount because, presumably, the disclaimer trust would not confer upon the surviving spouse any power that would cause the trust assets to be included in the spouse’s estate at his or her death. The difference is that the “disclaimer trust” could designate the decedent’s children as beneficiaries with, or instead of, the surviving spouse. A possible disadvantage of this approach is that the surviving spouse cannot have a testamentary power of appointment over the assets in the disclaimer trust since the existence of the power would cause the disclaimer not to qualify under Code §2518.11 Additionally, the estate planner should always be mindful that, when the time comes, the surviving spouse may decide not to disclaim, despite many representations to the contrary during the decedent’s lifetime. Finally, the surviving spouse may not be able to disclaim even if he or she wants to: The disclaimer may be barred under F.S. §689.21(6) or 732.801(6),12 the surviving spouse may be incapacitated, or he or she may die before disclaiming.
Third, the governing instrument may provide that, to the extent the personal representative does not make the QTIP election as to all or a portion of the marital trust, the unelected portion may pass to a separate trust to be established under the governing instrument.13 The terms of the separate trust do not need to qualify for the marital deduction, so that the trust could name both the surviving spouse and the couple’s children as current beneficiaries. Assuming that the surviving spouse is not the decedent’s personal representative, this approach insulates the plan from the spouse’s neglect, greed, or change of mind. Additionally, again assuming the surviving spouse is not the decedent’s personal representative, the separate, nonelected trust could confer a power of appointment on the surviving spouse. Because, at least during the surviving spouse’s lifetime, the beneficiaries of the elected and nonelected trusts are likely not to be the same, the governing instrument should contain exculpatory provisions protecting the fiduciary from liability for the exercise or nonexercise of the discretion to make the QTIP election. Even with such exculpatory revisions, these are dangerous waters for fiduciaries to navigate.
As part of advising clients regarding their estate plans, the planners should bear in mind Florida’s elective share law.14 If the credit shelter trust is funded pursuant to a self-adjusting formula in the governing instrument, a spousal disclaimer, or a nonelection of QTIP, a significant problem may exist under Florida’s elective share law. Under commonly used, self-adjusting trust funding formulas, more and more assets are likely to be allocated to the credit shelter trust with the passage of time. The trust may not qualify as an “elective share trust,” as that term is defined in Florida statutes.15 To be an elective share trust: 1) the surviving spouse must be entitled to the use of the trust assets, or to all of the income from the trust assets, for his or her lifetime; 2) the surviving spouse must have the right under Florida law or the governing instrument to compel the trustee to make the trust assets productive of income; and 3) no person other than the surviving spouse can have the right to distribute trust income or principal to anyone other than the surviving spouse. If the credit shelter trust does not qualify as an elective share trust, the value of the spouse’s interest in the trust for purposes of satisfying his or her elective share rights cannot be determined with reference to the valuation conventions contained in Florida statutes.16 Instead, pursuant to F.S. §732.2095(2)(d), the surviving spouse’s interests in the trust is the estate tax value of those interests. If the surviving spouse is a discretionary beneficiary of the trust, his or her interests are likely to be difficult to value for such purposes, even if the value of the trust itself is not. Thus, an allocation of an increasing amount of assets to a credit shelter trust that does not qualify as an elective share trust risks triggering the surviving spouse’s elective share rights.
A client who wants to minimize the chances that his or her spouse will take an elective share of the client’s estate may want to ensure that the terms of the credit shelter trust, no matter how that trust is to be created, are such as to qualify it as an elective share trust. Of the three techniques discussed above for capping the value of the credit shelter trust through postmortem action, the single fund marital trust with a partial QTIP election appears the least likely to trigger elective share problems under Florida law. This is because the unelected portion of the marital trust ought to qualify as an elective share trust.
Trusts not Just for Saving Taxes
The discussion above has focused on flexible postmortem trust planning in the context of an uncertain transfer tax environment. Many clients view trusts in their estate planning documents as a necessary evil that must be endured for the privilege of paying fewer taxes. Such clients, particularly if they are younger and expect to live to see the scheduled repeal, will see the act as a welcome opportunity to simplify their estate plans by dispensing with the postmortem trusts that they did not really want and perhaps never understood in the first place. Many nontax benefits still exist, however, for the use of trusts as part of estate planning.
A client who is in a second marriage can easily understand the nontax advantages of placing his or her assets in trust for the benefit of his or her spouse, thereby directing where the assets ultimately pass. Similarly, most clients can understand the protection afforded by placing assets in trust for the benefit of a child who may be experiencing marital troubles or substance abuse problems. While clients may accept the possibility that a child may squander the after-tax inheritance or that such inheritance may be subject to property settlement in a divorce, the increase in the amount of that inheritance by virtue of no estate taxes, however, may motivate clients to reconsider the usefulness of a trust. A trust could protect a child from his financial naiveté and poor judgment in general or could ensure that the clients’ legacy will ultimately pass to their grandchildren. Florida law will permit a person to create a spendthrift trust for another so that the beneficiary’s interest in the trust will not normally be subject to claims of the beneficiary’s creditors, including divorcing spouses.
Trusts are worthy of clients’ consideration in other, less obvious situations, too. As medical science progresses and people live longer, the chances of a beneficiary’s disability and subsequent incapacity increase. A 60-year-old daughter in perfect health today is at risk of becoming unable to manage her assets in the later stages of her life or of becoming susceptible to exploitation by outsiders. Placing the child’s inheritance in trust, with a resolute and diligent third-party trustee or cotrustee, protects the trust beneficiary from these misfortunes.
As investment products and strategies become more available and more complicated (and increasingly beyond the understanding of the average investor), a trust with an investment-savvy trustee can perhaps be the difference between poverty and plenty for the client’s descendants. Finally, an estate tax benefit for the beneficiary arises in a trust established for beneficiaries when the estate tax is no longer in existence. Such as a trust will stand a good chance of being grandfathered if the tax were to be reinstated during the beneficiaries’ lifetimes; assets owned outright by the beneficiaries will certainly be subject to a new tax.
The same type of flexibility discussed in connection with an inter vivos gift trust can be built into a testamentary trust. For example, an independent trustee of a trust for the benefit of a client’s descendants can be given the discretion, under certain predefined circumstances, to terminate the trust and distribute the trust assets outright to the beneficiaries. In this regard, great care must be taken both to exculpate the independent trustee from liability to the trust beneficiaries and to circumscribe the limits of the trustee’s discretion so as not to disqualify the trust for any tax exemption or other tax benefit that the trust was designed to take advantage of when it was created. Even without this type of flexibility written into the trust document, Florida’s new trust reformation statutes17 permit trusts established after December 31, 2000, to be modified or amended. The former statute generally permits courts to modify or terminate trusts if the purposes of the trust are no longer served by its continued administration for reasons not anticipated by the grantor. (In this regard, is the eventual repeal of the estate tax now an unforeseeable circumstance?) The latter statute permits the beneficiaries and trustees of a trust to agree to modify or terminate the trust on any basis on which they are able to agree.18
The ultimate fate of the estate, gift, and generation-skipping taxes appears far from certain. While waiting for the estate tax repeal in 2010, estate planning attorneys must determine what to tell their clients during the transfer tax repeal environment.
The rules have not yet completely changed. Lifetime gifting has traditionally been high on the planner’s list of techniques for minimizing death time taxes. Even though the estate tax exemption is slated to dramatically rise over the next several years, clients having significant estates should consider making inter vivos gifts for all the same reasons they did prior to the enactment of repeal. If repeal does not happen when and to the extent that the act now directs, these gifts can produce excellent transfer tax results. And, as before, many clients will still be attracted to making gifts for nontax reasons. However, there will also be clients whose sole motivation in making lifetime gifts is to save transfer taxes, and these people may not be inclined to make gifts unless there are taxes to be saved. These clients may want to consider making a gift to an irrevocable trust the terms of which permit (but do not require) an independent trustee to return the property to them if the tax is no longer in existence. This type of trust is likely to be most attractive to clients who can afford to forego the use of the transferred assets until such time, if at all, that the estate tax no longer exists.
At least for the next several years, a married couple’s estate plan will, in many cases, continue to turn on making the maximum use of the estate tax exemption available at the death of the first spouse to die. As before, doing so will take the form of a credit shelter trust for the benefit of the surviving spouse and, perhaps, the clients’ children and grandchildren. The act will now cause planners to have to think very carefully about how they structure the credit shelter trust, and this will be especially true in second-marriage situations. As the estate tax exemption steadily increases, commonly used funding formulas will cause an ever-increasing amount of assets from the first spouse to die to be diverted to the estate tax exemption trust and away from the marital share. This can produce unintended tax and nontax consequences in many situations, particularly if the client’s primary goal is to provide for his or her spouse. A burgeoning credit shelter trust also risks triggering the right of the surviving spouse to assert his or her elective share rights, thereby potentially undoing the plan. Until the transfer laws settle, the planner might consider whether to depart from funding formulas that are fixed as of death and, instead, to build in the flexibility to determine the value of the credit shelter trust through post-mortem decisionmaking. This flexibility can be accomplished in a number of ways, none of which is perfect for every client and most of which make the client’s choice of personal representative an extremely significant decision.
Finally, with the prospect of fewer and fewer assets being paid to the federal government in estate taxes, there will be more and more assets available for the clients’ children and descendants. This will make it increasingly important for planners to consider ways in which the client’s assets can provide the most benefit for his or her family over the longest period of time. Trusts have traditionally been the vehicle by which to reduce taxes. For many of the same reasons that trusts have been effective as tax-reduction devices, they will also be effective as a non-tax-oriented way to dispose of wealth. The slated repeal of the estate tax, and the form that repeal has taken as embodied in the act, are object lessons in the value of flexibility to respond to unanticipated situations, and trusts for the clients’ beneficiaries should be drafted with the certainty of uncertainty in mind. It is in the conceptualization, drafting, and implementation of these types of flexible trusts that estate planners will earn their keep, come what may in Washington.
1 now, readers will already be familiar with the phased-in increases in the estate and generation-skipping tax exemption amounts and decreases in the highest marginal rates, the one-year suspension of the taxes in 2010 and the potential resurrection of the taxes the following year, the retention of the federal gift tax, and the modified carryover basis rules. Further review of the new law can be found in Law, Explanation and Analysis: Economic Growth and Tax Relief Reconciliation Act of 2001 (CCH Inc. 2001).
2 Presumably, death after the triggering event would not be of as great a concern since the grantor will have defined the event on the assumption that his or her estate would contain the trust assets at that time.
3 Treas. Reg. §20.2036-1(b)(3)(iii).
4 See Treas. Reg. §25.2511-2(b) (emphasis added).
5 Rev. Rul. 76-103, 1976-1 C.B. 293.
6 In re Cameron, 223 B.R. 20, 25 (Bankr. S.D. Fla. 1998) (applying Florida law) (emphasis added).
7 In re Wheat, 149 B.R. 1003 (Bankr. S.D. Fla. 1992).
8 Id. at 1005 n.3.
9 Title 11, §542(c)(2) of the U.S.C. provides that “[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable non-bankruptcy law is enforceable in a case under this title. . . . ”
10 Partial QTIP elections are sanctioned by Treas. Reg. §20.2056(b)-7(b)(2).
11 Treas. Reg. §25.2518-2(e)(1).
12 These statutes generally bar a disclaimer if the would-be disclaimant is insolvent, has voluntarily assigned his or her right to the discussed assets, or has waived the right to disclaim.
13 See Treas. Reg. 20.2056(b)-7(d)(3).
14 Fla. Stat. §§732.201-732.2155.
15 Fla. Stat. §732.2025(2).
16 Pursuant to Fla. Stat. §732.2095(2), an elective share trust is valued for purposes of satisfying the elective share at 50 percent of the trust assets where the spouse has only an income interest, 80 percent when the spouse has both an income interest and a right to receive principal for his or her health, support, and maintenance, and 100 percent if both of the foregoing income and principal rights are coupled with a general power of appointment held by the surviving spouse.
17 Fla. Stat. §§737.4031 and 737.4032.
18 Under both Fla. Stat. §§737.4031 and 737.4032, a trust when by its terms uses the old “lives in being plus 21 years” rule against perpetuities set forth in Fla. Stat. §689.225(2) can specify that the trust reformation statutes do not apply to it.
Richard R. Gans is a shareholder in the Sarasota firm of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A. He is a board-certified wills, trusts and estates attorney.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, J. Michael Swaine, chair, and S. Dresden Brunner and William P. Sklar, editors.