Category Archives: Estate Planning

Presidents, Pandemics and Planning: A look to 2021 from the Lessons of 2020-Five Ways to Add Certainty to Your Estate Plan in Uncertain Times

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2021 begins in less than four weeks and the outlook on all fronts remains largely unknown.  Will there be a smooth transition from the current president to the president-elect? Will the Senate remain Republican controlled or will a 50-50 split render it a de-factor Democratic controlled chamber for the first time in six years?  Most importantly, will the Pandemic that has so fundamentally altered the world dissipate and/or disappear?

The answers to the above questions are unknown and it would be unwise to speculate.  In light of such uncertainty, finding stability in any area of life is a way to reduce stress and shield your family and assets.  The following are some suggestions to consider as we close in on the end of the year.

  1. Consider the use of a Revocable Living Trust-The current backlog in the Surrogate’s Courts has amplified existing problems with the processing of estates in New York.  Coupled with an already insufficient staff and funds, it is unlikely that the current logjam will let up any time soon.  To best allow your family to have immediate access to your assets after death, the best way to achieve this is to transfer your assets to a revocable living trust while you are alive and well.  This form of trust allows the grantor of the trust to continue to have access and use of the property in it while also titling it in such a way that allows family to access it in the event of incapacity or death without court intervention.
  2. Ensure beneficiary designations are updated on all transfer-on-death (TOD) assets-Retirement accounts, life insurance and other TOD accounts provide the easiest means of transfer for certain assets upon the owner’s death.  Failure to name initial and successor beneficiaries typically reverts the assets to a person’s probate estate, thus rendering the advantage these assets have moot. This can typically done online, cost-free and without the need to work with any advisor.
  3. Prepare/revise Power of Attorney (POA) and Health Care Proxy (HCP) documents-Because of current hospital restrictions, visitation and in-person communication with hospital patients has been limited or eliminated.  The increase of hospitalizations also leaves many individuals unable to handle their financial affairs or express their healthcare wishes.  A POA and HCP allowed a trusted relative or friend to step into the shoes of the hospitalized/incapacitated individual’s shoes to make decisions and handle the affairs of an individual while that individual is unable to do so.
  4. Finalize, update and prepare your estate plan-Confronting the need to plan for the future or the need to change previously prepared plans is never easy.  It is often times like these when the fears and anxieties about this are confronted with the reality of what happens if you do not address the underlying issues.  Removing the uncertainty of having an incomplete, outdated or nonexistent plan will remove a significant burden from your life.
  5. Stay informed and stay in touch with your advisors-Educating yourself on changes to the laws is not always the most engaging use of your time, but staying ahead of such changes will help guide you to ensured security with regard to your planning.  Alternatively, regular check-ins with your advisors is an easy and efficient way to keep informed.

William Shakespeare once wrote that “the past is prologue.”  Indeed, the immediate past of 2020 will remain with us for many years to come.  How we learn from it and make decisions from it will dictate how our lives, our families and our futures will be written.

Have a very happy and healthy holiday season and here’s to a much better 2021!-MCL

For more information, please contact info@levyestatelaw.com

Presidents, Pandemics and Planning: A look to 2021 from the Lessons of 2020-The Changing Face of Planning and Administering Estates in New York

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One common theme across all industries and professions is that the COVID-19 Pandemic has drastically changed the way people work and do business.  By necessity, we have been forced to adjust to a world where direct, personal interactions became non-existent, limited or altered by the need to wear protective coverings and to socially distance from others.  Working in the trusts and estates field has been a typical example of this.

The entirety of my career and the careers of my colleagues have focused on personal interactions with our clients, colleagues, adversaries and court/government officials.   Few other fields of law required so much personal interaction and under the rules and laws of New York state, it was mandatory.  COVID has forced both practicing planners and the courts/agencies they work with to make alterations to how things are done which, while not illogical from a practicality perspective, have long been resisted.

Estate Planning

The execution of testamentary documents has long been a very formalized and rigid process.  To execute a will that will be accepted by the New York Surrogate’s Court, an individual was required to sign the document in the presence of two witnesses.  In addition, to avoid the need to produce affidavits from the witnesses at the time of the person’s death, a self-proving affidavit signed by the two witnesses had to be affirmed and signed by a notary public.  For non-testamentary documents, such as trusts and other agreements, a notary’s signature was also needed.

In April, in response to the continued stay-at-home order imposed by New York, Governor Cuomo issued two separate executive orders which allowed for the execution and notarization of documents using video conferencing software such as Zoom or Facetime.  The requirements of witnesses and notary acknowledgment remain, but the need for people to be present in the same place at the same time was no longer required.  These orders were a much-needed lifeline for clients and planners alike to ensure that the safety of all parties was maintained while also allowing the needed work to be completed in a timely and proper manner.

Estate Administration

A majority of courts in the Unified Court System have used electronic filing of documents for years prior to the Pandemic.  The Surrogate’s Court, with very limited exceptions, had long resisted any form of filing aside from in-person filing.  Given the importance of original documents and the need for court clerks to provide individuals with instructions on changes and/or additional documents, it was not completely unreasonable.

COVID-19 did not automatically change this.  The Surrogate’s Courts throughout New York were no less affected by the Pandemic and many petitions before the court were put on hold as in person work at the courts slowed down or stopped at the courts.  With exception of emergency filings, new filings were suspended temporarily, a huge problem at a time when the annual mortality rate was rapidly increasing.

By early summer, most New York counties began allowing e-filing of petitions and documents for the very first time.  A few courts (Rockland County most notably) did not follow suit and only allowed mailed in documents to be accepted.  While this allowed existing and new matters to resume being processed, the shutdown/slowdown caused a very long backlog for many courts.  In some counties, no new citations or court dates were being issued well into the late summer.  Additionally, the increased mortality rate from COVID has increased the number of new applications and estate.

What Now?

It is unclear of these recent changes will remain once the Pandemic has subsided and in-person business becomes more prevalent.  Beyond the mechanics of how business is done, the state of the world and the court system makes planning in 2021 and beyond a larger challenge than it has been in previous years.  As the means of planning and administering estates has changed, so too must the strategies we employ to ensure individuals and families are properly protected.

For more information, please contact me at info@levyestatelaw.com

Presidents, Pandemics and Planning: A look to 2021 from the Lessons of 2020-Elections Have (Possible) Consequences

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The election of 2020, both at the federal and New York level, provided a glimpse into where our country and state will be heading as we enter the third decade of this century.  At both levels, the most immediate and pressing concerns are the containment of the COVID-19 pandemic and repairing the economic damage that came with it.  This will require additional spending and adjustments to the respective tax systems to make up for the substantial shortfalls in revenue that have or will occur over the next few years.

The structure of the Federal and New York governments have both changed and additional changes may come depending on the outcome of the two runoff Senate elections in Georgia in January.  Pending those results, it is impossible to be certain of the possibilities, but with the positions from those whose elections are already certain, we can speculate as to where things will be heading.

Federal

At the end of 2017, with control of the Presidency and both houses of Congress, soon-to-be-ex-President Trump signed into law the Tax Cuts and Jobs Act.  Significant cuts were made to the income tax, capital gains tax and corporate tax rates.  Most significantly for estate planners, the estate and gift tax exemption were more than doubled from the previous base exemption of $5 million to $11 million per person and $22 million per married couple (the exemption has since increased annually by a cost of living adjustment increase).  This drastically shrunk an already small number of estates subject to federal estate tax.

President-elect Joe Biden has proposed substantial rollbacks of many of Trump’s tax policies including reducing the estate and gift tax exemption to the 2009 amount of $3.5 million.  This would be even lower than the amount than President Obama agreed to in 2012 as part of the Fiscal Cliff deal.  Both income tax and capital gains tax rates would also be increased for individuals who make over $400,000 a year.

Trump’s tax changes were enacted using Budget reconciliation, a process which allows for economic related laws to pass with a mere majority and not the filibuster-proof threshold of 60 votes.  Given the current makeup of the US Senate, it is certain that if President-elect Biden chooses to tackle tax policy before the mid-term elections in 2022, he will have to use this process as well.  This would also require Democrats to win both seats in the Georgia runoffs and garner support from all Democratic (and Independent) Senators to allow Vice-President-elect Kamala Harris to break the tie. 

If Democrats cannot successfully establish an even split in the Senate, Biden may choose to either forego tax changes or focus solely on economic recovery policies.  Alternatively, he can chart a less progressive path and attempt to garner support from the small pool of moderate Republican Senators.  After 2022, tax policy will become more important as many of the provisions of Trump’s tax law expire in 2025.

New York

Presidential and federal elections often obscure the important of state-wide elections, but the 2020 New York election was fairly notable due to its results.  Beginning in 2021, the Democratic Party will have a super-majority in both the Assembly and State Senate.  This will the legislature to override any vetoes by Governor Cuomo on any legislation he may differ from them on.  Tax policy is an area where it is very conceivable that a conflict may emerge

Under Governor Cuomo’s tenure, the state estate tax exemption has risen significantly from $1 million in 2014 to $5.93 million in 2021.  This has exempted many more estates from state estate tax while also increasing the tax burden on those estates that exceed 105% of the applicable exemption.  While it is likely that both the legislature and Cuomo will seek to continue to place this burden on the very wealthy, it is quite possible that the exemption will be reduced to cover the state’s budget shortfalls.  New Yorkers would likely be much more tolerable of an estate tax increase than an increase to income or property taxes especially in light of the federal income tax treatment of the SALT deduction already increasing many New Yorkers taxes.

Budget shortfalls and additional spending are almost inevitable given the current economic problems at both the federal and state levels.  One way or another, the money for this will have to be raised.  Increased taxes are coming.  By whom and from whom remains to be seen.

For more information, please contact me at info@levyestatelaw.com

Planning and Administrating Estates During The Time of COVID-19: Virtual Execution of Documents.

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The current crisis has posed specific problems as it relates to the execution of new estate planning documents. Unlike in other areas of transactional law, the execution of documents which will ultimately be filed with the New York Surrogate’s Court require adherence to a series of formalities not required of other legal documents. Specifically, with regard to last will and testaments and other estate planning documents, there is a requirement for such documents to be witnessed by two or more persons at the time the signatory of the document is executed. The current restrictions on public gatherings made this requirement seemingly impossible until there was an easing or lifting of the restrictions.

Fortunately, over the last month, Governor Andrew Cuomo has issued a pair of executive orders which allow for the virtual execution and witnessing of certain legal documents including wills and other estate planning documents. The executive order can be found here:

https://www.governor.ny.gov/news/no-20214-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency?fbclid=IwAR3ukaFetCzvov8fgAB8IQM88OWp60gRf_2KX918BKOsRvwYmeIJGYVTq8g

Specifically, in order to utilize virtual execution and witnessing of documents, the following is required, namely:

  • If the person executing the documents is not known to the witnesses, they must present identification at the time of the virtual meeting;
  • The individual, witnesses and any supervising attorney must be able to verbally interact in real time during the execution of the documents;
  • The witnesses must receive an electronic copy of the signed document on the same date it was executed and may then sign where needed and transmit the witnessed document back to the individual; and
  • The witnesses may repeat the witnessing of the documents upon receipt of the electronically executed and witnessed documents within thirty (30) days of the execution of those documents.

This executive order follows a previous order which allows notary publics to take virtual acknowledgment of a signatory’s signature.   Collectively, these two orders remove physical separation and the current stay-at-home orders as barrier to current execution of documents. This is especially important for persons who become sick and need documents executed in a timely manner.

Planning and Administering Estates in the Time of COVID-19: Keeping Your Plan Updated

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At the end of any meeting where a will, trust or other document is executed, one of the common questions I receive is how often should a client’s documents be reviewed/changed. My common answer is that major changes to three main areas of importance-health, wealth and family-should trigger a call or email to your attorney to discuss what, if anything, needs to be changed.

It is my sincere hope that during this health and financial crisis, none of you experience any such changes. But, I would suggest that the current national crisis-and any future crisis-should provide a fourth clear reason to review your existing planning. Specifically, during this time when most of us are at home and not venturing out often, there are four areas that should be specifically reviewed, namely:

Fiduciaries: The current crisis has exposed the importance of additional factors to consider when selecting fiduciaries including executors, guardians and trustees. The physical and mental health of chosen fiduciaries may, under circumstances such as the present crisis, may not be as solid as you may wish it to be. Older fiduciaries who are more susceptible to the virus and who also are being advised to remain at home may not be in as great of a position to serve as they would under normal circumstances.   Finally, while proximity is not an official barrier to selecting someone, travel limitations and availability should be factored into these choices.

Funding existing trusts. Whether a trust is irrevocable or revocable and regardless of its intended purpose, if it is not funded, then it accomplishes nothing. Individuals often execute trust agreements and wait till a later date to fund the trust. If you have not funded an executed trust, this is an opportune time to do that for many types of assets. Real property may pose certain problem due to the delays at the county clerk’s offices, but the paperwork can be begun now even if the documents cannot be filed until a later date

Completing beneficiary designations. Amongst the easiest things that you can do to bolster your estate planning is ensure all beneficiary designations for any paid on death accounts and policies (retirement account, life insurance and annuities typically) are up to date and correct.   Most companies have the forms available online and those that do not can be contacted to get such forms.

Making taxable gifts. Individuals often forget to take advantage of the annual $15,000 gift tax exclusion ($30,000 for married couples) that provides a good opportunity to benefit their children and other heirs as well as reduce the size of their taxable estates.   Like reviewing your beneficiary designations, this takes minimal effort and cost to achieve potentially significant results.

A general review of your existing estate plan may uncover additional areas that you may want to revise. In many cases, the benefit of these reviews far exceeds the downside of not doing so.

 

Planning and Administering Estates in the Time of COVID-19: Start Your Planning Now

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The current pandemic that has affected the whole world has brought with it a dramatic change to the way we think about many different things. Basic parts of our life like shopping and spending time with friends and family have been upended as we try to find a way to establish a “new normal” while also finding ways to reduce the virus’ reach. It is extremely hard to think of the future when so much of the present remains uncertain, but in the area of trusts and estates, planning ahead is always the proper approach. In the current environment, it may also prove essential to protecting your family and assets.

If you have not begun any formal estate planning, it may seem like an inopportune time to begin that process. However, there are very significant reasons to consider starting the process now. First, as we all know by now, there is no clear end date to the current situation. Even when we can begin to function in something resembling normalcy, many things that were held up or paused during the pandemic will suddenly become pressing. Starting the planning process now can allow you to remove one thing from what may be a long list once the pandemic subsides.

Second, this situation has provided many of us with the clarity of what really matters most to us. An estate plan, at its core, is an expression of the people and things we want to protect above all others. Finally, while it is my hope that no one reading this will fall ill, the possibility is real now more than ever. In the past, procrastinating about planning could be considered problematic. In the current environment, avoiding the process can have profound and detrimental effects on your family and assets.

Once you have determined that you are ready to begin planning, it is important to consider certain general concepts. What are you short term goals for your planning and what are your long-term goals? The former should take precedence, but considering where you would like things to be beyond the next several months and years is also wise. Additionally, given our current situation, the decision as to whom you should ask to serve as a fiduciary (executor, trustee or guardian) has become more complicated. Age and geographic location have become more important factors to consider given the current restrictions and potential susceptibility of older people to the virus.

The form of the bequests or gifts under your estate plan is also complicated by the current situation. Protection of assets for minor children remains a key concern while tax based planning may prove to be less important for the time being. And while testamentary trusts do not pose significant administration issues as it compares to outright bequests, it should be noted that the current situation with the Unified Court System in New York and access to financial institutions might delay the final set up and administration of trusts.

These are unprecedented times for most of us and we can only do so much each day to help our families, our communities and ourselves. Protecting your most valuable assets has become more important than ever and ensuring that your family is taken care of no matter what comes next.

You Don’t Need An Angel, You Just Need a Guardian

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One of the key decisions families with minor children have to make when setting up an estate plan is who will serve as the guardian of those children if both parents die prior to the children reach 18 years old.   The probability of a guardianship provision being enforced is rare, but not impossible. For that reason, it is essential that such a decision be made long before it can become an issue.

Guardianship can mean different things depending on who the ‘ward’ or person needing care is and why they need such care.   For persons with mental or physical disabilities or who lack capacity to care for themselves, an interested party will typically petition the court to allow them to take control of another person’s life. Guardianship for minors differs on several fronts. First, it has an expiration date built in (when the minor turns 18). Second, depending on the type of guardianship sought, it can affect a minor’s entire life or just the assets they may have. Finally, the proof needed to establish guardianship is significantly less than a guardianship based on incapacity or disability.

A guardian of a minor may be appointed to care for the minor’s person, property or both.   Guardianship of a person deals with the care of the actual minor. In most situations, the minor would live with the appointed guardian and the guardian would be responsible for ensuring the proper care of the child. Guardianship of property is specific to assets that are set aside for or owned by a minor child. This can include inherited property, gifts or other assets that require adult supervision. Guardians of property serve alongside the Surrogate’s Court as being responsible for the assets of the minor. On a minor’s 18th birthday, the assets become the direct property of the former minor.

The selection process for choosing a guardian can be fraught with familial issues, concerns about making the correct choice and anxiety about whether anyone can care for a child the way their parents can.   As mentioned above, it is a rare occurrence when these provisions actually get enforced.   When choosing a guardian, some factors to consider include the potential guardians values and beliefs and how they compare to your own; financial stability and responsibility; availability to care for a child; and if the guardian has their own children, whether the care of additional children would create an undue burden on your selected guardian.

It is not easy to think of someone other than yourself or your spouse/partner raising your child and many clients delay completing their estate planning work because of their anxiety over this issue. The alternative is relying on the state to name the right person as guardian without any guidance from the minor’s parents. It is far better to go through the small discomfort yourself than to leave your children with potentially greater issues if the wrong guardian is chosen.

Please contact info@levyestatelaw.com for more information.

 

Summer’s Here, And the Time Is Right, For Getting Your Estate Plan in Order!

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Over the next few weeks, summer will usher in a fun-filled, relaxing three-month period where kids can say goodbye to their studies for the time being and adults can travel and enjoy everything the season has to offer. It would seem odd to think of this as the perfect time to work on your estate plan; in fact, with many companies offering summer hours and workloads generally lightening during the warm months, it is the perfect time to consider to get your estate plan in proper shape.

Where do you start? It all depends on what you’ve already done, but here are ten action items for you to consider while you’re making your vacation and travel plans:

  1. Have your initial planning documents drafted. You’ve been busy all year…and the year before that…and the year before that.   Taking the first step in getting your estate planning prepared may be the hardest, but once you begin, the process can be completed quickly and painlessly.   Initial documents include a last will and testament, a durable power of attorney and a health care proxy/living will.

 

  1. Review your existing documents to ensure they still fit your needs. Having an initial plan in place puts you ahead of most people, but that is only the starting point of the estate planning process.   Family, assets and health changes can affect what your wishes are. If you haven’t reviewed your documents recently, take the time to speak with your attorney to ensure that your wishes and intentions are still reflected in your documents.

 

  1. Fund your irrevocable and revocable trusts. Clients often forget that setting up a trust is a two-stage process.   First, the trust document is drafted to express how it will work and who will benefit from the assets. Second, the assets must be transferred into the trust. In particular, with irrevocable trusts, transfers should be made as soon as possible to avoid the imposition of the three-year rule if you die within three years of a transfer.

 

  1. Complete and/or update your beneficiary designations. Paid on death accounts and contracts such as retirement accounts, life insurance and annuities are amongst the easiest to claim after a loved one dies. Without the need to petition the court, these assets can be transferred quickly to the proper beneficiaries. However, without proper beneficiary designations, they can pass to the estate or to the wrong persons.

 

  1. Create or revise your assets list. Most estate attorneys, financial planners and other advisors will compile a list of your assets during the planning process, but the most accurate lists usually are self created. Updating or creating such a list will give you a better idea of where things stand with you and your family and can reveal that your assets have grown to the point where additional planning is needed.   Alternatively, in the event of your death, it can provide your heirs with a good roadmap of what assets need to be transferred and retitled.

 

  1. Review your life insurance. The amount, type and ownership of life insurance can change as you grow older and expand your family/assets. Many insurance agents provide audits of policies at no additional cost. Additionally, because life insurance is taxable only for estate tax purposes, changing the ownership of the policy to a life insurance trust is a great way to reduce the size of your taxable estate.

 

  1. Protect your family or small business. Business owners are often focused on the here and now and don’t take the time to consider what will happen to their business if and when they are no longer running it.   Many businesses lack the proper buy-sell agreements or even a proper organizational document to give co-owners and the owner’s family guidance over what happens to the business once the business owner leaves, retires or dies.

 

  1. Create a gifting plan. With the large increase to the federal estate tax exemption and the increased New York exemption, it might seem less important to consider gifting strategies. This is not true. For starters, individuals can now gift $15,000 (or $30,000 per married couple) to their beneficiaries every year. Additionally, through the use of trusts, the monies given to minors can be protected from waste and be available for usage for education and other expenses.   Finally, for those with estates nearing New York’s “estate tax cliff,” the lack of a New York specific gift tax continues to keep gifting as an important tool to reduce estate taxes.

 

  1. Consider Charitable Giving. For those with estate tax issues and philanthropic goals, setting up a structure to maximize your giving takes time and many state and federal approvals before you can begin giving. Summer gives you ample time to get the process started so that you can hopefully be ready to make contributions before the end of 2018.

 

  1. Understand your planning goals. Estate Planning attorneys and other advisors provide suggestions and advice based on what we know about the law and what others do.   But, without the input and understanding of what our client’s goals are, any plan we put in place will be incomplete.   With more time to contemplate your planning goals, you can help your advisors craft the right plan for you and your family.

 

Please contact info@levyestatelaw.com for more information

The New York/Federal Estate Tax Divorce Becomes Permanent (for now)

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In the final month of 2017, President Trump and the Republicans in Congress agreed upon a massive change to the federal tax system. Amongst the changes was significant increase to the federal estate, gift and generation skipping transfer tax exemptions. Beginning in 2018 and continuing through the end of 2025, each individual receives a $11.2 million exemption (adjusted annually for inflation) and each married couple receives a collective $22.4 million exemption. This leaves the vast majority of estates able to pass free of federal estate tax.

In New York, however, this change brought about an end to the hope of both tax professionals and clients alike that the New York state and federal exemptions would once again be equal. This hope has now been extinguished as New York’s exemption will remain $5.25 million through the end of 2018. On January 1, 2019, the exemption will be determined based on a base exemption of $ 5 million adjusted for inflation over the course of the last ten years. Furthermore, two major differences from the federal estate tax system will complicate New York estate planning even further.

First, under federal estate tax law, if one spouse dies leaving a portion of their exemption unused, the surviving spouse may ‘inherit’ the remaining exemption through the concept of portability. New York, on the other hand, does not recognize portability and without additional planning, the unused exemption would not be preserved. Secondly, under federal estate tax law, the taxable portion of an estate is the value of the assets above the decedent’s exemption. This is also true in New York unless your estate exceeds 5% of the exemption. Once an estate exceeds this amount, the entirety of the estate is taxable, not just the excess amount.

The New York/Federal Exemptions historically

For many years, New York conformed it’s estate tax exemption to the state death tax credit under the federal estate tax system. In 2001, this changed due to the tax legislation passed by President George W. Bush which increased the federal estate exemption over the course of the next decade leading to a temporary repeal in 2010. In order to preserve the revenue that it was receiving from estate taxes, New York and other states which had a state-specific estate tax decoupled from the federal system and set their own exemptions. In New York, the exemption remaining $1 million for well over a decade.

In 2014, Governor Andrew Cuomo enacted legislation by which the New York exemption would progressively grow in size over a period of five years. By 2019, the New York exemption was scheduled to be tied to the same formula by which the federal estate tax exemption was determined. This, it was hoped, would reduce the estate tax burden on many New York families while reduces the disparity between state and federal tax regimes.

Planning for the new New York/Federal disparity

 The large disparity between the two exemptions creates new complications and opportunities for New York residents with regard to their estate plans. Wills which utilized a mandatory credit shelter trust should be reviewed and changed to more flexible disclaimer trusts to give fiduciaries more room to determine how much and which tax to pay at a decedent’s death. Additionally, because New York does not have a state specific gift tax, New York residents with estates valued between the New York and Federal exemptions should consider gifting plans to lower their New York taxable estate and to avoid the estate tax cliff.

Gifting does not come without risks. For a taxable gift to be effective, the donor must live for three years after the gift is made. If they die in the interim, the gift is brought back into their estate for purposes of calculating their estate tax. In addition, given the partisan nature of the recent changes, it is not inconceivable that the current federal exemption may be repealed or lowered by a Democratic president and Congress. Finally, even if Republicans retain control over the presidency and Congress, the change to the estate tax will sunset. It is possible that any gifts made today may be subject to a future clawback by the IRS.

The Only Certainty Is Uncertainty.

 In the sixteen plus years since New York first decoupled from the federal estate tax system, the federal exemption has changed twelve times and the New York exemption has changed five times. There is no reason to believe that these changes will suddenly end at the federal or state level. The best way to ensure that your plan reflects these changes is to remain in contact with your estate planning and tax professionals.

Please contact info@levyestatelaw.com for more information.

Estate Tax 2018-What We Know, What Trump Wants and What’s To Come

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On Wednesday afternoon, after months of speculation, the Congressional Republicans released their and President Trump’s proposal for tax reform/cuts to begin as soon as 2018. Much of the general parameters of the plan have been known for months with few specifics being known. The proposal released on Wednesday didn’t add many specific although the contours of the proposal were now official. Not shockingly, a repeal of the federal estate tax was amongst the proposals presented.

With a formal bill not yet written and a strategy for passage still unclear, it is helpful to look at what the estate tax system-both federal and state-may look like next year depending on what Congress does and whether or not the estate tax factors into the eventual final bill.

Federal Estate Tax Exemption-A Tale of Two Possible Futures.

Currently, the Federal Estate Tax Exemption stands at $5.49 million per individual and a collective $10.98 million for married couples. Under the federal system, through the concept of portability, a surviving spouse may utilize any unused portion of their deceased spouse’s estate tax exemption. Since all assets pass to surviving spouses estate tax free (due to the federal marital deduction), a surviving spouse has great potential to transfer an eight-figure estate to their heirs free of estate tax.

Since 2010, the exemption has been increased annually as a factor of inflation. And although an official decision will not be made by the IRS until next month, the expectation is that the exemption will be increased to $5.6 million per person and $11.2 million per married couple. It is also projected that the federal gift tax exclusion will be increased from $14,000 per beneficiary per year to $15,000.

Under the Trump/Republican plan, the federal estate tax and the generation skipping transfer tax (GST tax) will be repealed. Beyond that, very few specifics are known. Will the repeal begin in 2018, be retroactive or phased in as it was when it was repealed in 2001? What will happen with capital gains treatment of inherited property? Since there will be no longer an estate tax, will property that previously received a step up in basis be given a favorable treatment at death and what, if any, limit on stepped up basis will there be?

Another notable omission from the plan is any mention of the federal gift tax. Given the reduction in revenue that a repeal of the estate tax will create, is it possible that the federal gift tax exemption will be reduced? Or will the system also be overhauled to deal with the reality of an estate tax federal tax system? The coming weeks and months may or may not tell the tale on this issue.

New York and other local State Estate Tax Exemptions.

 In New York, the outcome of where the Federal Estate Tax Exemption will land matters more over the next year than any time since 2000. In 2014, Governor Cuomo and the state legislature agreed to increase New York’s state exemption from $1 million to eventually re-connecting it with the applicable federal exemption. Currently and through December 31, 2018, the New York estate tax exemption is $5.25 million. On January 1, 2019, the exemption will be tied to the then in-effect Federal Estate Tax Exemption. What if there is no Federal Estate Tax Exemption? It is unclear as of now what New York would do, but it seems unlikely that New York would follow suit with a full repeal.

Our neighboring states have taken different tacts with regard to their state specific exemptions. Last year, New Jersey repealed their estate tax exemption starting January 1, 2018. They continue to have an inheritance tax for bequests to non-lineal family members and with a new governor entering office shortly after the New Year, there may be additional changes to their estate tax/inheritance tax system. Like New Jersey, Pennsylvania has only an inheritance tax, but only fully exempts bequests to surviving spouses and children under 21. Connecticut has an estate tax with a current exemption of $2 million.

Beyond 2018.

By this time next year, we will likely know what both the exemptions for both the federal and state specific estate tax systems will be. But, as with any change to a tax code, it may be many months if not years before we fully understand the ramifications of these changes.

Please contact info@levyestatelaw.com for more information.