While income tax planning focuses on the short term, transfer tax planning takes a long-term view of preserving your family wealth for generations to come. Whatever your age, health, or net worth, you should look to the future, keeping an up-to-date will and planning the disposition of your estate. If you plan properly, you can provide security for your family and potentially reduce the gift and estate taxes you or your estate must pay. The new tax law did not make a lot of changes in the transfer tax area, but it did enhance your ability to minimize transfer tax by doubling the lifetime exemption amount.

Temporarily Increased Lifetime Exemption Amount

Federal law provides a lifetime exemption which allows you to transfer an amount of assets without having to pay transfer tax. Under the new federal law, from 2018 through 2025 the exemption is doubled to $10,000,000 from its prior amount of $5,000,000. This amount is adjusted annually for inflation. Thus, for 2018, the lifetime exemption amount is $11,180,000 per person. This means that you may give up to $11,180,000 ($22,360,000 collectively with your spouse) of assets over the course of your life or at your death without incurring a gift or estate tax. The generation-skipping transfer (GST) tax exemption is also $11,180,000 for 2018. The lifetime exemption and the GST exemption will increase (by virtue of inflation adjustments) to $11,400,000 for 2019. After 2025, barring further changes in the law, the exemption will revert to $5,000,000 (adjusted for inflation).

The below table shows the increase numbers for their respective years, adjusted for inflation:

Under the new law, Treasury is directed to promulgate regulations to address any potential difference between the exclusion amount at the time of a gift and the exclusion amount at the time of the death of the donor of the gift. Without regulations, a gift that was covered by the enhanced exclusion (during the eight-year period) might result in estate tax liability at the donor’s death if the exclusion has reverted to a lower amount given the cumulative nature of the transfer tax system. This is sometimes referred to as a “clawback” of the gift. It is anticipated that the regulations will confirm that use of the enhanced exemption during the eight-year period results in a permanent transfer tax benefit.

Overview of Federal Transfer Tax System

Subject to certain exclusions and deductions, a transfer of assets for less than full and adequate consideration either during the owner’s lifetime or at death may be subject to transfer tax. During lifetime, transfers may be subject to a gift tax; at death, transfers may be subject to an estate tax; and both during lifetime and at death, transfers that “skip” a generation may be subject to a GST tax. Each of these tax regimes will be explored in further detail below.

In addition to the lifetime exemption discussed above, each year, you may make gifts up to a certain dollar amount to as many people as you choose without exposure to gift tax (as long as these gifts are of present interests rather than future interests); this benefit is called the annual exclusion. For {}, this amount is $15,000 (or potentially $30,000 with the consent of your spouse) per recipient. Moreover, amounts paid for educational or medical expenses directly to the relevant institution (not to the individual beneficiary) are excluded from gifts subject to the gift tax. Finally, certain transfers to spouses qualify for the unlimited marital deduction, and certain transfers to charities qualify for the unlimited charitable deduction. Spousal transfers will be discussed in more detail in the next section. If the gift exceeds these excludable and deductible amounts, the excess is subject to a tax rate of 40%.This tax is due from the donor and is paid with Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return.

The gift and estate tax systems are unified; this means that at your death, any taxable gifts are added back to your estate for purposes of calculating your estate tax. To the extent your lifetime exemption was utilized for or a gift tax was paid on these gifts, your estate will not be subject to tax on these same gifts. If you fully utilize your lifetime exemption during your lifetime, you will not have any exemption remaining at your death, and any excess value included in your estate will be subject to estate tax at a rate of 40%. At your death, Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, must be filed if your gross estate (including any taxable gifts made during life) exceeds the lifetime exemption (as adjusted for inflation each year - see table above). Deductions for spousal transfers and charitable transfers are also available for estate tax purposes, but even if these deductions reduce your taxable estate to zero, a return must still be filed for your estate.

Although the gift and estate tax regimes form a unified system, transfers may still have different tax consequences depending on when they occur. For instance, if you make a gift of appreciated property, the recipient will generally have the same basis as you did in the asset. Alternatively, if the transfer is made from your estate, then the tax basis in the asset will generally be “stepped up” to the fair market value (FMV) of the asset at your date of death. This is true whether or not your estate has to pay estate tax.

In addition to any potential gift or estate tax, if a transfer is made to a “skip” person (such as a grandchild or an unrelated person more than 37½ years younger than you), the transfer may also be subject to GST tax. As mentioned above, there is a similar exemption from this tax that can be used during your life or at death. Any GST tax due is reported on Form 709 or Form 706 (depending on whether the GST tax is incurred during life or at death) and paid along with any gift or estate tax due.

Unlimited Marital Deduction

As mentioned earlier, transfers to your U.S. citizen spouse will not be subject to the gift or estate tax because of an unlimited marital deduction. The marital deduction is available for outright transfers to your spouse and transfers to certain types of trusts. A common trust set-up for the spouse that qualifies for the marital deduction is a qualified terminable interest property (QTIP) trust.

Among other requirements, a QTIP trust must pay all net income to the spouse at least annually, cannot be used to benefit anyone other than the spouse during the spouse’s lifetime, and must be includible in the spouse’s estate at the spouse’s death. A QTIP trust can be set up during your lifetime (as an inter vivos trust) or set up at your death (as a testamentary trust). The reasons for using a QTIP trust instead of transferring assets outright to your spouse are generally not tax-related; they include maintaining financial control for a spouse who may need assistance in managing money and making sure the assets pass to your descendants when your spouse dies. This may be particularly important to you if this is not your first marriage and you have children from another marriage whom you wish to benefit while still making the assets available for your surviving spouse should they be needed.


The traditional approach to estate planning involved the creation of a bypass (or credit shelter) trust to hold the amount of the decedent’s unused exemption for the benefit of the children and the spouse and a QTIP trust to hold the balance of the decedent’s assets for the benefit of the surviving spouse. This approach created a non-taxable estate at the death of the first spouse to die by virtue of the lifetime exemption and marital deduction, and also enabled the couple to transfer assets equal in value to both spouses’ exemption amounts to their heirs without paying gift or estate tax. In contrast, if the assets of the first spouse to die were transferred outright to the survivor, although no tax would be due at that time by virtue of the marital deduction, only the surviving spouse’s lifetime exemption would be available to protect the remaining assets from estate tax when the second spouse died.

Legislation allowing for the portability (or transferability) of the lifetime exemption to the surviving spouse has made this planning less critical in some cases. Now, a decedent leaving everything to the surviving spouse (either outright or in trust) can pass on his or her unused exemption amount to the surviving spouse so that both spouses’ exemption amounts can still be utilized at the second spouse’s death without using the two-trust structure described above. In order to pass on the unused exemption amount, the executor of the first deceased spouse’s estate must make an election by filing Form 706 (even if it is not otherwise required).

Although portability was meant to simplify estate planning (particularly for those with estates with a total value between one and two times the lifetime exemption amount), it adds another variable in determining the most appropriate estate plan. Creating a bypass trust instead of relying on portability has the added advantage of shielding the additional appreciation on those assets that takes place between the first and second deaths from the estate tax; however, for income tax purposes, assets in a bypass trust would be inherited with only a carryover basis at the death of the second spouse instead of a step-up (assuming appreciation) to their FMV at that later date. In addition, to the extent that you want to utilize both spouses’ GST exemptions, the GST exemption is not portable. Finally, there may be non-tax benefits to creating one or more trusts—asset protection, protecting someone who is not financially savvy, and making sure assets are preserved for later generations, to name a few. Individuals must carefully consider the benefits and burdens of relying on portability versus employing a more traditional estate plan and determine which approach would best meet their objectives.

Income in Respect of a Decedent

In some cases, certain property owned by a decedent may be subject to both estate tax and income tax. Called income in respect of a decedent (IRD) property, this property may include bonuses paid after death, individual retirement account balances, pension plan balances, savings or thrift plan balances, and nonqualified employee stock option spreads. A beneficiary who inherits an asset subject to both income and estate tax is entitled to an income tax deduction for the amount of estate tax “paid” on the asset.

While the income tax deduction is beneficial, if you are planning to make charitable contributions, it is more tax-advantageous to give IRD assets to a charity that will not have to pay taxes on the amount in any event.

In other words, if you have two items, one that involves IRD and another one that does not have a built-in income tax liability, it would be advisable to give the item without the income tax liability to a non-charitable beneficiary and the IRD item to a charity, which will not have to pay income tax on it. To do this, specify in your will that the charity is to receive the IRD items, so that neither income tax nor estate tax will be due on those items.

Consider transferring IRD assets to your spouse. While this amount will be taxable to your spouse for income tax purposes, the marital deduction will ensure that it is not subject to estate taxes.

It is preferable not to fund a credit shelter trust with IRD assets when other assets are available. Otherwise, the built-in income tax liability associated with those assets may reduce the effectiveness of the credit shelter trust.

Importance of Your Will

One basic building block of a proper estate plan is your last will and testament. In drafting your will with legal counsel, you should provide for the disposition of your property, name an executor, and designate guardians for your minor children. If you fail to take care of these items in your will, the state will do it for you, distributing property in accordance with state law and appointing an executor and guardians for your children. Although the court acts in good faith, the outcome may not match your intentions. You may also want to have other basic but often essential documents, such as a medical directive and a power of attorney, drafted at the same time.

Planning requires a comprehensive approach, including succession planning for your business and determining the appropriate beneficiaries for life insurance and compensation plans. At the heart of the process, however, is your will. Not only is it the primary instrument for determining the distribution and management of your property, it may also help you to manage estate and GST taxes.

Some people may prefer to use a revocable living trust (RLT, along with a shorter pour-over will) to dispose of assets. The advantages of an RLT include avoidance of probate, confidentiality, and an easier transition in the case of disability. RLTs and other types of trusts are discussed further below.

Once your document is properly drafted, it is important to keep it up to date. Certain events should trigger a re-examination of your document to ensure that it still fulfills your intentions. For example, you should revisit your document when there is a marriage, divorce, birth of a child or grandchild, death of someone named in your document, purchase or sale of major assets, change in state of domicile, or change in the tax law.

Choosing the Right Executor

One of the important issues you should address in your will is the identity of your executor (or personal representative)—the person responsible for managing your estate and distributing assets as you direct. This individual will have various responsibilities, including conserving the assets, preparing them for distribution to beneficiaries, and making required government filings.

Shifting Assets to Heirs

Shifting assets to your heirs (or trusts for their benefit) during your life offers both long-term and short-term financial benefits. First, by transferring income-producing assets, you can possibly reduce total family income tax liability associated with the property (although this advantage may be diminished by the “kiddie tax” and compressed trust tax brackets). Second, you can help your children build wealth of their own. Finally, you can reduce the size of your estate and, ultimately, the tax on that estate. If properly planned, shifting assets can accomplish your objectives and ensure that the rewards of a lifetime of work pass to your heirs.

Current tax law allows you to make individual present interest gifts of $15,000 annually to any number of persons without being liable for gift tax. If your spouse agrees to split gifts, you can give $30,000 gift-tax-free to each person (however, your spouse would not be able to make additional annual exclusion gifts to that same person).

Note: Estates with positive estate tax liability are required to report to both the IRS and the appropriate heirs the value of bequeathed property as of the owner’s death, allowing the IRS to track the basis of the inherited property more easily

Establishing Trusts

A trust is a legal entity that is established for a given period. It separates legal title (the powers of ownership) from equitable title (the benefits of ownership). The trustee has legal title to the trust property but holds it for the benefit of the beneficiaries who have equitable title to the trust property.

Federal income tax rates on trust income parallel individual tax rates but with more compressed brackets. While an unmarried individual will not reach the top tax rate of 37% for 2018 until he or she has over $500,000 of income, a trust will reach that rate with just $12,501 of income. In addition, the 3.8% Medicare tax and capital gains and qualified dividend rates, now 20% for those in the 37% bracket, may also apply. The combined effect could be severe for those trusts and estates that do not distribute all of their income each year.

The below tables outlines the respective years taxes on trust income:

Trusts can be utilized to achieve both tax and non-tax goals of the creator of the trust. For example, a trust might be established to:

  • Avoid the cost and administrative effort associated with probate
  • Minimize gift, estate, and GST tax on the transfer of wealth to your descendants
  • Arrange for proper management of assets until children or grandchildren reach a certain age
  • Provide income and ease of management for your surviving spouse
  • Maintain income for your surviving spouse while naming children as ultimate beneficiaries
  • Contribute current income to a charity with yourself or others named as beneficiaries after a given period
  • Provide current income for yourself or others with the remainder going to a charity when the trust terminates
  • Retain income from assets for a period of years and then pass on remainder interest to others
  • Ensure professional management of assets
  • Prevent creditors or former spouses of your children and grandchildren from reaching assets held for their future benefit.

One of the most popular trusts is the RLT (discussed above), which can be established to manage assets and avoid the difficulties and costs associated with the probate process with respect to the assets transferred to the trust before death. Because it is revocable, you can change the terms and beneficiaries at will. You can be as involved or uninvolved as desired in managing the assets, serving as trustee personally or naming another trustee. Upon your death, the assets that have been titled in the name of the RLT pass to your beneficiaries as designated in the trust agreement without going through probate. An RLT thus allows you to retain control of the trust assets during your life and allows your trustee to access funds immediately at your death instead of being tied up in probate. But keep in mind that the assets held in the RLT are still included as part of your estate for estate tax purposes.

Other trusts are irrevocable and involve a permanent transfer of assets. Although you relinquish all control and may have to pay gift tax on the transfer, the income and appreciation attributable to the transferred assets are owned by the trust and are not subject to estate tax upon your death, unless you retain a beneficial interest in the trust.

Some common irrevocable trusts are described below.

Irrevocable Life Insurance Trusts (ILITs)

Life insurance proceeds can be used to pay estate taxes or otherwise enhance your wealth. You should determine the amount of insurance you need, and then decide on the type of policy that is best for you.

Although the death benefit from a life insurance policy is not taxable to the beneficiary for income tax purposes, the value of the death benefit will be subject to estate tax in the estate of the insured if the insured owns the policy at death or within the three years preceding death. This will occur unless you relinquish, more than three years before death, all incidents of ownership, including the right to:

  • Name or change the beneficiary
  • Surrender or cancel the policy
  • Assign the policy
  • Revoke an assignment
  • Pledge the policy for a loan
  • Obtain a policy loan
  • Elect the time or manner of the payment of proceeds.

In some instances, the inclusion of a life insurance policy could cause the value of the estate to exceed the exemption amount. If this were to occur, the beneficiary of the policy could be forced to use life insurance proceeds to pay an estate tax caused by the presence of that very policy. As a result, it generally is more beneficial to have someone else (such as an ILIT) own the policy

An effective way to keep life insurance proceeds out of your estate is to establish an ILIT. You can either transfer a current policy—individual, split-dollar, or group term—to the ILIT or empower the ILIT trustee to purchase a new policy on your life. You can gift to the ILIT the amount needed each year to pay the premiums. By using a trust, you will have greater flexibility in handling distributions of life insurance proceeds and income than would be possible under insurance settlement options. Note that if you assign a current policy to the ILIT (as opposed to having the ILIT purchase a new policy), you must live for at least three years after the transfer is complete or the proceeds will still be included in your estate. Assignment of a policy will be considered a gift at FMV and will be subject to gift tax. In most cases, term insurance has a negligible value except to the extent of prepaid premiums.

Intentionally Defective Grantor Trusts (IDGTs)

The tax rules regarding what qualifies as a completed transfer for income tax purposes and for estate tax purposes are not identical. Because of these differences, an irrevocable trust can be structured so its assets are excluded from the grantor’s estate (and considered completed gifts) but its income is taxed to the grantor (as if the gift had not been made). An IDGT takes advantage of these differences, allowing the trust assets to grow undiminished by income tax (because the tax liability associated with such growth is paid by the grantor of the trust rather than the trust itself) for the benefit of future generations while also removing growth on assets gifted or sold to the trust from your estate for estate tax purposes.

A trust that is disregarded as separate from the grantor for income tax purposes has another advantage: sales of appreciated assets by the grantor to the trust are ignored for income tax purposes and generate no capital gain. Nor does a sale to the trust result in gift tax liability, as the transfer of additional assets to the trust is for full and adequate consideration.

Grantor Retained Annuity Trusts (GRATs)

For those who have already utilized or wish to minimize use of their lifetime gift tax exemption, a GRAT may be a way to shift additional assets to children without generating a gift tax. The GRAT pays you back an annuity amount each year, and any remaining assets in the trust at the end of the annuity term pass to the remainder beneficiaries (typically, the creator’s children).

If the grantor retains a sufficiently large annuity payment during the term—equal in value to the assets originally transferred to the GRAT plus an assumed rate of return, the value of the remainder gift can be “zeroed out”, such that no taxable gift is made.

If the assets in the trust outperform the assumed rate of return (which has ranged from 2.4% to 3.4% over the past year), the excess passes to the beneficiaries free of gift tax.

Qualified Personal Residence Trusts (QPRTs)

A QPRT involves the transfer of ownership of your residence or vacation home to a trust but the retention of the right to live in that home for a term of years. The remainder generally passes to your children.

The benefit of this type of trust is that the gift is reduced by the value of your retained income interest. Therefore, you are able to leverage your gift tax exemption and exclude a valuable asset from your estate. The longer the term of years, the greater the reduction in the value of the gift. However, if you do not survive the term of years, the entire value of the property is includible in your estate. So it is in your interest to choose a term that you think you will survive.

Charitable Remainder Trusts (CRTs)

By using a properly structured CRT to transfer highly appreciated, long-term gain property, you can improve your own financial situation in addition to benefiting a charity.

A CRT allows you to transfer assets to a trust with the stipulation that you receive distributions for a specified period. Property in the trust is transferred to the charity at the end of the trust term. You can choose generally one of two options (although there are variations on both of these types): (1) a charitable remainder annuity trust that provides a fixed amount of annual income irrespective of fluctuations in value within the trust from year to year; or (2) a charitable remainder unitrust that remits an amount based on a fixed percentage of trust assets valued annually.

With either option, the trust term can last for your lifetime, for beneficiaries’ lifetimes, or for a designated period not to exceed 20 years. You also can name more than one income beneficiary in either type of trust.

Charitable Lead Trusts (CLTs)

A CLT is an arrangement whereby the donor gives an annuity or unitrust interest to a charity for a term of years (or for the donor’s lifetime), after which the remaining value is paid to the donor or some other remainderman. This type of trust is the reverse of a CRT since the charity is the first party to enjoy an interest in the trust. It is generally preferable that the assets transferred to a CLT produce sufficient income to pay the annuity due to the charity.

A CLT can be either a nongrantor or a grantor trust. A grantor trust allows you to receive an immediate income tax deduction; however, you will then be taxed on all income generated by the trust each year without any offsetting charitable income tax deduction for the amounts going to charity. A nongrantor CLT does not provide an upfront charitable deduction, but the trust will receive an income tax deduction each year for amounts transferred to the charity out of the trust’s gross income.

While a CRT can help accomplish current financial objectives, it may not be as beneficial to your heirs. If you want to support your heirs as well as a charity, a CLT might be an option. A CLT can pass assets to your heirs whileminimizing the estate .taxes due on a large estate. This is done by setting up a testamentary CLT and “zeroing out” the trust. This means that the percentage payout to the charity and term of the trust are set so that the charitable estate tax deduction equals the amount going into the trust. Assuming the trust outperforms the assumed appreciation rates, the remaining amount passes to your heirs free of estate tax

Business Succession Planning

Passing on the family business to your successors involves many issues: transferring responsibility for running the business to the next generation, guaranteeing future income and financial resources, and minimizing income and estate taxes. A few planning ideas that may assist you in meeting your objectives are set forth below.

Buy-Sell Agreements

Establish a buy-sell agreement that will provide a mechanism to buy out an owner upon retirement, disability, or death. This keeps the company’s ownership in the hands of those most involved, while providing liquidity to the selling owner or the owner’s estate

Two types of buy-sell agreements are popular. With a redemption-style agreement, the corporation buys out the owner. If properly structured, the funds used to purchase shares are not considered a taxable dividend to the selling owner or the owner’s estate. In a cross-purchase type of agreement, the owners themselves agree to buy out each other.

In either case, the buy-sell agreement places a value on the company, typically using a formula based on capitalization of earnings. The formula arrangement may be respected for estate and gift tax purposes provided it is a bona fide business arrangement, comparable to similar arrangements entered into by persons in an arm’s-length transaction, and not a device to transfer assets to family members at less than FMV. The buy-sell is often funded through the purchase of life insurance.

Note: that if you had an agreement in place on October 8, 1990, you should consult your tax adviser before you make any modifications. Some modifications may make you subject to more stringent statutory rules.

Employee Stock Ownership Plans

Create a ready market for your company’s stock with an employee stock ownership plan (ESOP). An ESOP is a tax-qualified employee retirement plan designed to invest primarily in employer securities. This benefit plan offers major advantages to you as a business owner, primarily because it provides a market for the closely held company’s stock.

An ESOP funds employees’ retirement accounts with shares generally purchased from the previous owners. Both C corporations and S corporations can have ESOPs (a partnership cannot), and both have advantages, but the rules are different for the two types of entities. Under an ESOP, the employer establishes a qualified retirement plan trust with trustee. This is a tax-exempt trust, if all of the requirements are satisfied. The trust purchases shares of the employer, often using a loan from the employer. The sale must be for full FMV, generally with an independent valuation. The trustee thus becomes the “owner” of the shares in the trust, and the company has a tax-exempt owner or partial owner. To the extent of the ESOP ownership percentage, any increases in company value tied to shares held within the ESOP are not taxable until cash or shares are distributed to an employee, generally on termination from service with the company.

Also, shares paid from an ESOP may fit the net unrealized appreciation rules and thus may be partly subject to capital gains and partly subject to ordinary income rates when distributed from the plan to any employee or former employee (in contrast to the treatment of any other property transferred out of a qualified retirement plan, which is generally subject to ordinary income tax treatment).

With proper planning, the rules permit you to sell your own C corporation shares (but not S corporation shares) to the ESOP and receive the proceeds without current taxation (the capital gain tax is deferred until you sell the qualified reinvestment property in the future). To obtain this benefit, you need to enter into a section 1042 arrangement, sell your shares at FMV, and then purchase marketable securities as replacement property. The employee and employer must follow a number of other tax rules and other tax law requirements must be met. In addition, you, as the seller, can meet personal liquidity objectives without selling all of your shares at once. If you die holding the replacement securities, capital gains tax is never paid.

Valuation issues are critical in selling shares to an ESOP or obtaining shares from an ESOP. As noted above, an ESOP must obtain independent valuations in order to hold shares of a private company. The IRS does not require an independent valuation each year, but the ESOP trust must determine the FMV when distributing shares to employees or participating in a transaction involving shares to see if a new valuation is needed.

This is not only true for the original sale to the ESOP. Instead, independent valuations must be obtained every year or so under this sort of plan.

ESOPs are subject to a significant number of restrictions and do not work for all sales, but they can be a good way to monetize your holdings while providing an employee incentive.

Installment Sales

Consider an installment sale to transfer company stock to family members. Properly structured, an installment sale can “freeze” the value of closely held stock even though a family member pays for shares over a period of time. If assets are rapidly appreciating, you can lock in the current value for estate tax purposes while transferring appreciation to the buyer. In addition, you can spread out receipt of gain on the sale, delaying payment of income tax until the year specific payments are received. However, certain installment sales may create an interest expense on a portion of the deferred gain.

Similar benefits can be achieved through a sale to an IDGT (described above).

Planned Gifting

Through a planned gifting program, you and your spouse could transfer a significant portion of your holdings without incurring any gift or estate tax. As noted above, current tax law allows you to make $15,000 annual gifts ($30,000 collectively with your spouse) of cash or property to any number of recipients gift-tax-free. In some situations you could use this technique to pass on shares of the family business, transferring appreciation and ownership to the next generation (along with some of the techniques discussed above such as an IDGT, GRAT, etc.). Note, however, that if you have typical restrictions on transfer of interests in your business operating agreement such that economic benefits are not presently accessible, a gift of these interests may not qualify for the annual exclusion. You may also use your lifetime exemption to make gifts of your ownership interests without having to pay transfer taxes.

At Nugent & Associates, we're not just number crunchers. We bring over 3 decades of invaluable certified public accounting and tax expertise to your company – serving as business and financial strategists who can offer such services as tax and financial planning, investment advice, diligent financial records, and help with estate planning.

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This page is intended to be informational. This website, nor any of the information contained on this site constitutes professional, business, tax or legal advice and is not a substitute for such advice nor does it create a professional-client relationship between you and Nugent & Associates.

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