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Happy New Year
The end of the year and the start of a new one is the traditional
time for retrospectives and predictions. In the estate world, the
dominate theme in 2011 was the extraordinary asset transfer
opportunities available to the wealthy. Specifically, the right to give
$5 million ($10 million for a married couple) to children or other
beneficiaries in a Dynasty Trust and thereby avoid estate tax on those
assets and their appreciation forever. Using a Dynasty Trust also
provides asset protection advantages so that the transferred assets
remain in the bloodline in perpetuity.
These transfers also could be discounted for transfer tax purposes,
so that the transferred assets are worth only 60% to 70% of their
underlying value. The gifts could be leveraged to allow for even greater
asset transfers, through techniques that benefit from low interest
rates, such as GRATs or a "gift and sale to an Intentionally Defective
Trust." (See the prior December 6, 2010 Post, where a number of articles
about these techniques are cited.)
In short, the stagnant economy, low interest rates, and advantageous
gift and estate tax laws, combined for a banner year for wealthy
taxpayers doing estate planning.
Will this optimal estate planning environment continue in 2012? Most
everyone expects the dismal economy and low interests rates to continue.
The $5 million exemption amount also is scheduled to remain during
2012. However, there is a remote possibility that tax legislation later
in 2012 could retroactively reduce the exemption amount for all of 2012
(emphasis on "remote"). Thus, it is likely that, until 2013 when the
exemption amount falls to $1 million, the $5 million exemption remains.
In the Obama administration and Congress' sights for 2012, however,
is legislation to eliminate discounts on intra-family transfers;
limiting Dynasty Trusts to only 90 years; and eliminating some of the
advantageous transfer strategies, such as 2-year GRATs.
On balance, 2012 starts with the same advantages that applied in
2011. So those who wanted to act but failed to do so still have the
opportunity to transfer significant assets estate and gift tax-free, at
least early in 2012 and perhaps up to December 31, 2012. Not all asset
transfer strategies, however, may survive the entire year.
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