For most people, the terms gift or gifting brings to mind holidays, birthdays and other celebratory occasions. In the context of estate planning, making a gift or entering into gifting plan is a powerful tool to provide a benefit to family members, charities and other beneficiaries while also creating a tax benefit to the donor or giver of the gift. And while the intention behind giving a gift is similar to giving holiday and birthday gifts, the benefits and risks are much more significant.

Here is an introductory guide to gifting as part of your estate plan:

1.  What is a gift? When discussing gift planning, the term gift is used to describe any gratuitous transfer during a donor’s lifetime. Transfers made for consideration or some form of compensation is not treated as gifts for tax purposes (although the IRS may claim a partial gift is made if the consideration is insufficient). Transfers made at a donor’s death are also not considered gifts for purposes of this discussion.

2.  When is tax potentially due on a gift made by a donor? Under federal tax law, each individual has two distinct exemptions for purposes of making gifts. First, each individual may gift up to $14,000 to as many recipients or donees as they wish each year. Married couples can collectively gift up to $28,000 to each donee each year without any gift tax applying.

If an individual or married couple exceeds their annual exclusion amount in any                 given year, the excess is then deducted from their lifetime gift exemption.                         Currently, the lifetime exemption is $5.43 million with a maximum tax rate of 40%.             The lifetime exemption is tied to the federal estate tax exemption, so use of your               lifetime gift tax exemption will reduce the amount that can pass tax-free at your                 death.

3. Are transfers to all donees potentially subject to taxation? No. Transfers from one spouse to another spouse are exempt from all gift tax. This is helpful in planning the estates of married couples with uneven estates. The spouse with a larger estate can gift a portion of their estate during their lifetime to their spouse with no gift tax consequences and potentially large estate tax savings. However, transfers between spouses, like all transfers, are subject to the three-year look-back rule that will be discussed later in this article.

4. What is cost basis and how does it relate to gift planning? When property is transferred, the new owner of the property receives a cost basis that will be used to calculate capital gains when the property is later sold. Depending on when the property is transferred and how it is transferred, the calculation of the cost basis varies. Property that is purchased for consideration will have a cost basis equal to the sale price of that property.   For gratuitous transfers, the cost basis will either be carried over from the previous owner or stepped up to the fair market value of the property at the time it is transferred. Property that is inherited generally receives a stepped up basis to the date of death (or alternative valuation date) value. This is a significant benefit to those who sell inherited property shortly after a loved one’s death.

Property that is transferred by gift will typically carryover the basis of the donor. If the          property has appreciated since its purchase or if the property is likely to appreciate            after the transfer, the donee may be left with a significant capital gains tax upon their          sale of the property.

5. What gifting pitfalls should I avoid? Gifting property comes with certain common pitfalls that should be avoided if possible, namely:

Creating joint ownership is a gift.   It is not uncommon for older individuals to add a           child or sibling to their bank accounts and/or real property deeds. However, many             do not realize that adding someone’s name to their property ownership actually gifts         a portion of their assets to that person. In addition to unintentionally making a gift,             adding a child or another loved one to a real estate deed will cause the donee to               receive the donor’s cost basis and lose out on the potential stepped up basis in the           property if it was transferred at the donor’s death.

Transfers made within three years of a donor’s death. If a donor is attempting to               reduce their taxable estate, making a gift of property is one of the best ways to                 actively reduce their estate value. However, any transfer made within the three years         prior to a donor’s death will be included in the calculation of the donor’s taxable                 estate.

Transfers made to qualify for Medicaid. Older individuals often consider gifting as a           means to qualify for Medicaid. In New York, Medicaid can be applied for if services           are needed in the home or community (community Medicaid) or if a person needs to         move into a nursing home (nursing home Medicaid). For the former, Medicaid will               begin paying once a person reaches the appropriate income and asset limits                     regardless of when the transfer is made. For the former, however, any transfers                 made within five years of the application will be counted against the applicant. The             total amount of gifts will be divided by the current average cost of a nursing home in         the applicant’s county and the sum will be the amount of months the applicant will             have to self pay before Medicaid will cover their nursing home expenses.

Gift planning comes with many benefits and pitfalls that require careful consideration. By working with the proper advisors, you can maximize the value of your gifts to your beneficiaries and to yourself.

Please contact info@levyestatelaw.com for more information.