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The Estate Planner
Winter 2012 l September/October 2011 l July/August 2011 l May/June 2011 l March/April 2011 l Archive
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Those who are charitably inclined but concerned about having sufficient income to meet their needs may find that a charitable remainder trust (CRT) is the answer. A CRT allows donors to support a favorite charity while potentially boosting their cash flow, shrinking the size of their taxable estate, and reducing or deferring income taxes. This article explains the basics of a CRT and the investment advantages. A section shows how a CRT provides the ability to control the income flow to suit the donor’s needs, which can be helpful in retirement planning. 
If a prospective couple plan to sign a prenuptial agreement, it’s a good idea to design the agreement with their estate plan in mind. A well-planned prenup can provide several estate planning benefits; a poorly planned one can trigger unintended tax consequences or hinder achievement of estate planning goals. As this article discusses, benefits include protection from liability for one spouse’s separate debts and implementation of estate planning strategies. But there are traps, as well, involving premarital transfers, the estate tax exemption, and the disposition of the family home. 
When an elderly parent gradually loses control of their faculties, it can be difficult for children to determine whether having their parent declared incapacitated is the right thing to do. This article explains the legal criteria for incapacitation, and shows what’s involved when that decision is made. It discusses the role of a court-appointed guardian/conservator, along with other possible options. 
If a couple have similar irrevocable trusts for each other’s benefit, they could be subject to the “reciprocal trust” doctrine. It prohibits tax avoidance through trusts that 1) are interrelated, and 2) place both grantors in the same economic position as if they’d each created trusts naming themselves as life beneficiaries. This article explains that reciprocal trusts can be undone by the IRS; to avoid this, it’s important to vary factors related to each trust, such as the trust assets or terms, trustees, beneficiaries, or creation dates. 
One tough decision that retirees face is choosing the best option for receiving payouts from a pension plan. Would a lump-sum payment be the best option, or would it be better to go with an annuity? If the latter, is it better to go with single life or joint life? What about combining a single-life pension payout with a life insurance policy? As this article explains, the answers depend on such factors as the beneficiary’s and spouse’s actuarial life expectancies, current health conditions and family medical histories, along with current financial needs and the possible desire to provide a spouse with a continuing source of current income. A section shows how a breakeven analysis can assist the decision-making process. 
Special needs trusts (SNTs) benefit children or other family members with a disability that requires extended-term care or that prevents them from being able to support themselves. This trust type can provide peace of mind that a loved one’s quality of life will be enhanced while not disqualifying him or her for Medicaid or Supplemental Security Income (SSI) benefits. This article examines what a SNT can and cannot pay for, and explains the language that it should contain to ensure it doesn’t disqualify the beneficiary from government benefits and will protect the assets against creditors’ claims. 
If a trust is subject to high state income taxes, it may be possible to change its residence — or “situs” — to a state with low or no income taxes. But not all trusts are the same — nor are state laws. This article explains which types of trusts may be good candidates for relocation, along with the factors that states use in determining a trust’s state of “residence” for tax purposes. It also discusses the steps involved in moving a trust. 
During the last few years, the IRS has stepped up its enforcement of the Report of Foreign Bank and Financial Accounts (FBAR) rules. To discourage taxpayers from hiding foreign accounts, these rules require U.S. citizens, residents and entities to file annual returns disclosing financial interests in, or signature authority over, foreign bank and investment accounts with an aggregate value of more than $10,000. This article explains who is subject to FBAR reporting requirements and the kinds of interests that must be disclosed. 
The generation-skipping transfer (GST) tax can have harsh consequences. Those who take full advantage of GST planning strategies, however, have an opportunity to shield their wealth from tax and build a lasting legacy. This article discusses three types of transfers that may trigger GST taxes, and illustrates strategies to allocate the GST tax exemption in a manner designed to produce the greatest tax savings. A section shows why automatic-allocation rules regarding the exemption don’t always work in a taxpayer’s best interest. 
Estate taxes are only one piece of the estate planning puzzle. In fact, there are critical nontax issues to think about. This article looks specifically at appointing a guardian for children; avoiding probate through a revocable “living” trust; protecting assets against creditors’ claims; and designing a trust to incentivize the beneficiary’s behavior. 
Despite its name, the purpose of a spendthrift trust isn’t just to protect profligate heirs from themselves. Adding spendthrift language to a trust benefiting one’s heirs can help safeguard assets from their creditors, or in the event of relationship changes. This article explains how a spendthrift trust works. 
Estate planning is often associated with death. But it’s just as important for a plan to address incapacity associated with illness, injury, advanced age or other circumstances. This article looks at three planning tools for financial decisions (a revocable living trust, a durable power of attorney, and joint ownership) and two tools for health care decisions (a health care power of attorney and a living trust). 
The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 has created an unprecedented opportunity for affluent taxpayers to remove substantial amounts of wealth from their estates through lifetime gifts. It’s increased the gift and estate tax exemptions, and reduced the top rate for these taxes, but for 2011 and 2012 only. It’s uncertain whether Congress will make these changes permanent, so those who have the ability to make large gifts may find it beneficial to do so this year or next. This article offers details about the increased exemption, the tax-saving power of annual exclusion gifts and direct payments of tuition and medical expenses. And a section explains why credit shelter trusts are still a good idea. 
The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 is notable not only for the changes it made, but also for those it omitted to make. It did not, for example, adopt proposals that would have reduced the tax-saving opportunities inherent in grantor retained annuity trusts (GRATs), family limited partnerships (FLPs) and family limited liability companies (FLLCs). But there’s no guarantee that Congress won’t revisit these proposals in the future. Plus these strategies may be even more powerful while the gift tax exemption is $5 million. So, as this article explains, those considering setting up a GRAT, FLP or FLLC may find that it’s a good idea to do so sooner rather than later. 
This article describes several business asset-protection strategies that owners should consider implementing to help ensure that their business will remain a valuable asset for their heirs. These include creating separate entities, stripping the company of equity, or distributing accumulated earnings to the owners. But, as a section explains, the time to implement asset-protection strategies is well before the company runs into trouble with creditors’ claims. Otherwise one could run afoul of fraudulent conveyance laws. 
If one’s estate plan contains a formula clause tied to the federal estate tax exemption, it’s a good idea to review it in light of changes made by the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. As this article explains, formulas may need to be adjusted to avoid unintended results. 
For many people, a family business is a significant source of wealth, so passing it on to the next generation in a tax-efficient manner is an important estate planning goal. One of the simplest and most effective strategies available is an installment sale to an intentionally defective grantor trust (IDGT), thereby allowing the transfer of the business free of capital gains and gift taxes, and allowing any future appreciation in value to go to heirs estate-tax free. This article shows what to consider in setting up an IDGT, with a section listing some specific pros and cons. 
When lending money to family members, the first question to ask is: “Is this transaction truly a loan?” If the IRS concludes that the transaction isn’t a bona fide loan, it will recharacterize it as a taxable gift. By formalizing the transaction and treating it as a loan, it’s possible to avoid negative tax consequences and have the necessary documentation to support a bad-debt deduction in the event the borrower defaults. This article examines the difference between a loan and a gift, appropriate interest rates, and how the type of loan affects income and gift taxes. 
Few estate planning issues are as emotionally charged as the disposition of the family home. And emotions may run even higher with vacation homes, which often evoke even more fond memories. So it’s important to address one’s vacation home in an estate plan. This article discusses considerations that should be addressed in transferring a home. Or, for those who are not yet ready to give up ownership, it explores other strategies, such as a qualified personal residence trust (QPRT) or qualified terminable interest property (QTIP) trust. 
A lifetime gifting plan that takes advantage of the $13,000 per recipient annual gift tax exclusion can be a powerful strategy for transferring wealth tax free. But the exclusion is available only for gifts of present interests. This can be a problem for contributions to trusts, which are generally considered gifts of future interests. This article discusses Crummey powers, which give trust beneficiaries the right to withdraw contributions for a specified period after they’re made, and which convert a future interest into a present interest that qualifies for the annual exclusion.