The new, slightly higher limits for tax-exempt gifts and estates for 2013 give some investors another good reason to look at the role of trusts in helping them achieve their financial goals. Circumstances differ from family to family, but one clear fact is emerging: Trusts remain an important tool in many situations—and for a range of reasons.
“The new federal estate and gift tax laws are providing an incentive for families to take a fresh look at their estate planning and wealth transfer strategies,” says Kevin Bartlett, president of Fidelity Personal Trust Company. “Many people are surprised to learn that there are many benefits to having a trust other than potential tax savings.”
The changing landscape
Traditionally, trusts have been used as a strategy for reducing estate taxes on wealth that is eventually transferred to children, grandchildren, or other heirs. By funding an irrevocable trust, you can remove assets from your estate—and avoid a potential estate tax. Over time, the trust will enjoy the growth of the assets you transferred outside of your estate, and your named beneficiaries will enjoy the use of the assets according to the terms you set out in the trust.
The fiscal cliff deal raised the lifetime gift and estate tax exclusions slightly, from $5,120,000 in 2012 to $5,250,000 in 2013, and increased the estate and gift tax rate from 35% to 40%. In addition, Congress created “portability” of the federal estate tax exemptions. This means that a spouse can scoop up any unused portion of the federal estate tax exemption from his or her deceased partner, bringing the effective exemption amount per married couple to $10.5 million. The total gift tax exemption for a married couple is also $10.5 million. For individuals who have remarried, portability is limited to only the most recently deceased spouse.
On the surface, these changes might cause a married couple with assets below $10.5 million to regard the creation of trusts as unnecessary due to the estate tax exemption. The fact is that there are many other reasons to consider employing trusts as part of your overall estate plan. Says Bartlett: “Though taxes are important, protection of your assets and assuring your family’s well-being in the event of incapacity far outweigh the benefits of tax savings for most people.”
Understanding the benefits of trusts
“As married couples examine the role of trusts in their wealth transfer planning, they should look well beyond federal estate tax considerations,” Bartlett says. He points out that trusts can be used for many other purposes, including:
- Control of your wealth. Should you become incapacitated while you’re living, a funded and properly constructed revocable trust, for example, may ensure that the trust assets will remain available for your benefit. After you’re gone, the same trust can control who will receive distributions from the trust, as well as when the distributions will occur and on what terms. Both of these considerations, for example, can be especially important for families with children from multiple marriages, because the trust can help ensure that a decedent’s specific wishes for the distribution of his or her wealth are carried out.
- Protection of your legacy. A properly constructed trust can protect your legacy from your heirs’ creditors—or from the spendthrift ways of the beneficiaries themselves.
- Privacy and probate savings. Whether you’re married or single, the assets included in your will must pass through your state’s probate process. This requirement raises two concerns: First, there are fees associated with probate; and, second, probate records are generally accessible to the public. By putting assets into a revocable trust during your lifetime, however, you can avoid having these assets pass through probate at your death and retain your family’s privacy, while at the same time retaining full use and control of those assets during your lifetime.
- Gift tax considerations. Some individuals and couples are taking advantage of the lifetime gift and estate tax exclusions that have risen slightly, to $5,250,000 in 2013 as a way to remove future appreciation from his or her own estate. But while this may be a sound strategy for removing the money from the donor’s estate, Bartlett points out that the donor is relinquishing all control over the money. By gifting the money instead to a trust, the benefactor can at least establish control over how and when it is to be distributed to beneficiaries.
- State inheritance taxes. Estate taxes aren’t the sole province of the federal government. There are 21 states that also levy an estate tax; some can be far from inconsequential and often apply to estates worth much less than the current federal estate tax exemption of $5.25 million. For those who live (or have assets such as real estate located) in a state that has an estate tax, a properly constructed trust can be an effective estate planning tool for minimizing state estate taxes, just as it can be for potentially reducing federal estate taxes.
Getting good advice
The type of trust you consider creating—and the provisions you include—depends on your individual circumstances and goals. While the variety of trusts and their uses are too many to list and discuss fully at this time, here are a few examples:
- As already discussed above, funding a revocable trust—also known as a living trust— during your lifetime can be useful in keeping your assets out of probate and helping to provide privacy and efficiency for the settlement of your estate.
- If making gifts during your lifetime makes sense for estate tax savings or other reasons, the use of a specifically designed irrevocable trust to receive such gifts, given your personal circumstances and needs, may be warranted.
- For example, a qualified personal residence trust (QPRT) may allow you to transfer a primary residence or vacation home out of your estate, while allowing you to use that residence during a specified period of time.
- Those with a blended family may want to consider a qualified terminable interest property (QTIP) trust, which may help provide income to a spouse from a second marriage. If funded and properly constructed, a QTIP trust may also be used to ensure that any principal goes to any children from a first marriage once the second spouse dies—while being useful in minimizing estate taxes payable. For example, if a married couple’s plan currently provides for funding a trust up to the amount of the full federal exemption at thedeath of the first-to-die spouse, that amount would now be $5.25 million, not the amount of the exemption when the plan was originally executed. This could be a disaster if, for example, the surviving spouse is not a beneficiary of the trust and the full value of the first-to-die’s estate is less than the $5.25 million estate tax exemption. In this case, the surviving spouse could be left with insufficient funds outside of the trust to live on. In such a situation, the surviving spouse, at a minimum, should be added as a beneficiary of the trust.
- The uncertainty over future estate tax law clearly presents an ongoing challenge for keeping your estate plan aligned with the law at the time it is exercised. Married couples who have estates that may or may not be valued below the federal estate tax exemption at the death of the first-to-die spouse may want to consider a disclaimer trust. This type of trust allows the first-to-die spouse to leave everything to the surviving spouse, but allows the survivor to disclaim the inheritance, in a timely fashion, and have it go into a trust instead. Such a strategy would allow the surviving spouse to base his or her decisions on the existing laws at the time of the first-to-die’s death.
Clearly, deciding which trust to use, if any, is a complex challenge that requires the advice and guidance of a trusted estate planning attorney. “For people who have been putting off addressing their wealth transfer strategies, now is the time to consider a trust that meets their needs,” Bartlett says.
For those couples who already have a traditional estate plan in place that includes the creation of a trust upon the death of the first-to-die spouse, a reexamination of the plan in light of the new laws may be very important to ensure that it continues to work as desired.
“The many complexities of estate planning and wealth transfer strategies require professional guidance,” Bartlett adds. “Your Fidelity representative can provide direction for helping you get started. Fidelity also provides a menu of trust products and services in conjunction with a planning consultant. The current attention being given to trusts and estate planning is making this the perfect time to make sure your plan is aligned with your personal objectives and one in which you have the desired level of control over and protection of your legacy.”