Happy Belated 100th Birthday, Estate Tax!

Both President-Elect Trump and the Republicans in the House of Representatives have proposed to end the estate tax. Started in 1916, the tax was first imposed to help finance World War I and more recently was designed to restrict concentrations of wealth.

The Wall Street Journal article, “Strategies for Playing Trump’s New Estate-Tax Plans,” notes that estate tax repeal seems “virtually certain.” There’s no 100% certainty the tax is dead. You never know what Congress will do or when. Nevertheless, folks need to draft their wills and keep making some types of gifts and delay making some others.

If the current estate tax is repealed, it will give a hefty tax cut to the only very wealthiest millionaires and billionaires. This includes Trump and several members of his proposed cabinet, along with a few dozen members of Congress. In 2014, 17 senators and 43 representatives reported family assets ranging from at least $5 million to $10 million or more.

It’s a little less clear what may happen to the gift tax. The gift tax applies to transfers during one’s lifetime and to an income-tax provision known as the “step-up,” which allows assets held at death to bypass capital-gains tax. This applies to all assets (except not-yet-taxed retirement funds), even those that have been held for years and are highly appreciated. Trump’s proposal looks to eliminate the step-up above an exemption of up to about $10 million. Beyond that, the deceased’s cost of the asset (the starting point for measuring capital-gains tax) would transfer to the heir.

With these uncertainties, here are a few planning tips:

Sign a will. It’s important to have a valid will, and if you’re concerned about what Congress will do, think about adding in flexibility, like allowing an executor or trustee latitude to make changes.

Temporarily avoid taxable gifts. Don’t make irrevocable moves that risk being subject to gift taxes, unless there is an important rationale, like transferring shares in a company that is about to go public.

Ease up on discounts. Early on in 2016, the Treasury proposed to curb “valuation discounts,” which are applied by the wealthy to lower estate and gift taxes. These regulations are not expected to survive.

Timing. In the past, some estate tax changes have been retroactive and some not, so it’s difficult to say what Congress will do. It is also not apparent whether any of the changes will be permanent or will expire at some point. As a result, there may be continued uncertainty, even after Congress acts.

Reference: The Wall Street Journal (December 9, 2016) “Strategies for Playing Trump’s New Estate-Tax Plans”

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