The estate tax was eliminated in 2010; however, many estates were adversely impacted by the 2010 law.
The 2010 law substituted a “carry-over” basis tax regime, which meant that beneficiaries received the same asset basis held by the decedent. Thus, untaxed asset appreciation was preserved and upon sale, beneficiaries would pay federal and state income taxes on any gains.
Now, estates affected by the 2010 law may elect to use the new law, thereby avoiding the carry-over basis rules. Estates with appreciated assets are prime candidates for the election, because any untaxed appreciation is eliminated under the traditional concept of revaluing assets at fair market prices upon death.
Executors who want the new law to apply to 2010 estates or take advantage of the portability of unused exemptions will need to make timely elections to trigger these provisions.
To leverage the new gift-tax exemptions, very large estates should consider the traditional estate planning concepts of fractional interest discounts through family limited partnerships or similar entities.
NOTE: For many estates below $10.0 million, using these conventional planning strategies may have negative income tax consequences – if so, then consider unwinding these entities.
Traditional Estate Planning
Traditional three-trust planning may still be considered in case the new law expires. Although most estate planners believe the new law will survive, there is always the possibility that it will not.
To play it safe, amend the existing three-trust estate plan to take into account the new law, but leave it in place as a backup.
Remember, current estate plans contain distribution provisions for the assets, regardless of the changes in tax law.