Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, January 11, 2017

Article on Fiduciary Duties in 2017

Fiduciary 2016Gail E. Cohen recently published an Article entitled, In Like a Lamb, Out Like a Lion: For Fiduciaries, 2016 Started Out Quietly, but 2017 Promises to Be a Wild Ride, Tr. & Est. 28 (Jan. 2017). Provided below is a summary of the Article:

The year 2016 started out quietly, seemingly a continuation of the status quo. We continued acting as fiduciaries of trusts that took advantage of tried and true tax strategies. Professional fiduciaries received good news in April when the Supreme Judicial Court of Massachusetts overturned the troubling Pfannensitehl decision of 2015, thereby providing assurance that discretionary trusts weren’t subject to claims of divorcing spouses in Massachusetts. Later in the year, as expected, the Internal Revenue Service put forth long-awaited proposed regulations intended to curtail the use of valuation discounts in gift and estate planning for family entities. 

Then came Donald J. Trump. Seemingly everyone expected Hillary Clinton to win the presidency, thereby continuing the status quo, albeit with higher income taxes and higher estate and gift taxes (or at least a lower exemption from those taxes). Up until the election, there was a flurry of activity to take advantage of valuation discounts prior to the Internal Revenue Code Section 2704 regulations becoming final. Now, we don’t know exactly what 2017 will bring. 

A few items to watch: lower income tax rates; elimination of gifts of appreciated assets to private charities; elimination of estate and gift taxes and presumably the generation-skipping transfer (GST) tax; income tax at death or carryover basis; and non-adoption of the proposed IRC Section 2704 regulations. Looking ahead, we should examine the potential impact that these actions may have on professional fiduciaries. 


January 11, 2017 in Articles, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax, Professional Responsibility, Trusts | Permalink | Comments (0)

Friday, January 6, 2017

Uncertain Death to the Death Tax?

Death taxesWith the election of Donald Trump, Americans want to know: will he follow through on his vow to deliver death to the death tax? There is a good chance that Trump will abolish the estate tax because it has become complicated and costly to administer and the increase in capital gains tax would provide a simpler system. The estate tax as well as its counterparts, the gift tax and the generation-skipping transfer tax, all bring complications while raising little revenue. In order to evaluate whether keeping these taxes, it will be important for the new President-elect to consider their social purposes.  

See Jeff Schlegel, Death to the Death Tax?, Financial Advisor, January 3, 2017. 


January 6, 2017 in Current Events, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax | Permalink | Comments (0)

Monday, December 19, 2016

Article on Advising the Ultra-High-Net-Worth Clients

Wealth advisorChristopher P. Woehrle recently published an Article entitled, Capital Without Borders: An Insider’s Research into the Advisors of the World’s Wealthy, Tr. & Est. (Dec. 2016). Provided below is a summary of the Article:

In Capital Without Borders: Wealth Managers and the One Percent, Dr. Brooke Harrington, associate professor of Economic Sociology at Copenhagen Business School, applies the principles of ethnography to learn the practice of wealth management and understand the outsized role of advisors in representing their clients. Her book is very timely, as the release of the Panama Papers spotlighted the issue of offshore tax havens, while the number of U.S. citizens renouncing their tax citizenship continues to climb. The self-perpetuating nature of the wealthy avoiding the payment of income and transfer taxes exacerbates global income and wealth inequality. 

I’ll highlight the major findings from Dr. Harrington’s interviews with wealth managers, whose role she sees as the defenders of ultra-high-net-worth (UHNW) individuals and their families ($30 million minimum in investable assets) through legal and financial expertise. I’ll also examine the workhorse techniques of asset protection and the positioning of philanthropy. I’ll conclude with the policy implications of the owners of capital increasingly free of any tax home. 


December 19, 2016 in Articles, Estate Planning - Generally, Generation-Skipping Transfer Tax, Income Tax | Permalink | Comments (0)

Wednesday, December 14, 2016

The Effect of Trump's Tax Proposals on High Net Worth Reitrees

High net worth retireesThe recent presidential election marks a good opportunity for retirees to review their long-term financial plans and implement new strategies, especially with Trump’s tax proposals. If you are a high net worth retiree, there are things you can do to protect yourself. With the proposed reduction in income tax brackets, it is important for these retirees to plan accordingly with discretionary income sources. Additionally, if Trump’s modification for tax deductions takes effect, retirees should reconsider their current deductions, specifically in the areas of mortgages and charitable donations. High net worth retirees should also understand that even if the estate tax is repealed, estate planning is still a necessity. Lastly, eliminating the basis “step up” will not allow retirees to avoid capital gains taxes upon death, so you should consider reducing your investment risk. 

See Jeff Fosselman, What the Trump Tax Proposals Mean for High Net Worth Retirees, Forbes, December 12, 2016. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.


December 14, 2016 in Current Events, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax | Permalink | Comments (0)

Tuesday, December 6, 2016

Article on Wealth Transfer Tax Reform

Wealth transfer taxJoseph M. Dodge recently published an Article entitled, Three Whacks at Wealth Transfer Tax Reform: Retained-Interest Transfers, Generation-Skipping Trusts, and FLP Valuation Discounts, 57 B.C. L. Rev. 999 (2016). Provided below is an abstract of the Article:

This Article offers three sets of proposals to reform the existing federal wealth transfer tax system, the common theme being the link between the timing of the taxable transfer and valuation. Under the first set of proposals, transfers with retained interests would be taxed at the first to occur of the transferor's death or the date the interest expired. In addition, the term “retained interest” would be broadly construed to encompass the power to revoke and the possibility of receiving income or corpus under another person's power. The second set of proposals relates to the generation-skipping tax. To achieve accurate valuation, the tax would be imposed only on taxable distributions, and the exemptions would either be the unused gift/estate exemptions of deemed transferors or separate per-transferee exemptions. The third set of proposals relates to valuation discounts of interests in family-held entities, mostly family limited partnerships. The lack-of-marketability discount for family investment-holding entities should be ignored because the tax-motivated destructions of non-unique value are against public policy, and the removal of the value-depressing restrictions is likely to occur in the future. Minority-interest discounts should not be recognized where minority status exists by reason of marital property rights or arises by gift or bequest. As a transition rule (or as an alternate approach), the disappearance of value-depressing restrictions and the recombining of minority interests into a majority interest should, where valuation discounts were previously obtained, be subject to a recapture excise tax.

December 6, 2016 in Articles, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax | Permalink | Comments (0)

Thursday, November 17, 2016

Tax Tasks to Complete Before the End of 2016 in Light of Trump's Election

Trump tax planIn light of Donald Trump’s election and his pre-election tax platform, you should consider several tax planning strategies as part of your year-end planning. McManus & Associates have listed the ten items below to complete before the end of 2016.

  1. Accelerate your income tax deductions.
  2. Postpone receipt of income.
  3. Do not buy any capital assets this year.
  4. Make gifts to charities and family foundations with appreciated assets.
  5. Harvest losses to offset capital gains.
  6. Establish and fund qualified plans.
  7. Identify assets and amounts to make proper GRAT distributions before April 17, 2017.
  8. Make annual exclusion gifts to chosen loved ones of $28,000 (per married couple).
  9. Make distributions of income from trust accounts and estate accounts to lower the income tax liability.
  10. Host annual meetings for your family office, partnerships and foundations.

 See Top 10 Tax Planning Tasks to Complete Before the End of 2016 in Light of President-Elect Trump’s Proposals, McManus & Associates, November 16, 2016.

Special thanks to Lauren DuBois (Media Inquiries, McManus & Associates) for bringing this article to my attention.  

November 17, 2016 in Current Events, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax, Resource Links | Permalink | Comments (0)

Sunday, November 13, 2016

How Trump's Tax Proposals May Encourage Dynastic Wealth

Trump taxesIf our new President-elect follows through with his campaign promises, wealthy families may find it easier to accumulate dynastic levels of wealth. A repeal of the estate tax will break down the guard against generational wealth, but Trump wants to still impose a tax on capital gains above $10 million upon the sale of assets. This plan, however, would allow rich inheritors to never pay capital gains if they did not sell their assets, unlike modest inheritors who normally sell or spend what they get. Additionally, as for charitable deductions, contributions of appreciated assets into the decedent or decedent’s relative’s private charity will be disallowed with a cap of $200,000 per couple, limiting the incentive for the rich to be charitable. Further, some speculate that we could be saying goodbye to the gift tax and generation-skipping tax as well, which would have a greater economic impact than the repeal of the estate tax. Trump’s tax proposals will contribute to further concentrations of wealth, carving out the perfect resting spot for dynastic wealth.

 See Paul Sullivan, Trump’s Changes to the Tax Codes May Encourage Dynastic Wealth, N.Y. Times, November 11, 2016.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) & Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

November 13, 2016 in Current Events, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Income Tax | Permalink | Comments (0)

Friday, November 11, 2016

Article on Estate & Gift Taxation of Nonresidents

Taxation nonUSJohn R. Strohmeyer recently published an Article entitled, Estate and Gift Taxation of Nonresidents, November/December Probate & Property (2016). Provided below is an abstract of the Article:

The digital economy makes it easy for people and money to move across international borders. If the United States is not involved, then this movement will not have an effect on a person’s U.S. tax situation, and in general a nonresident of the United States will have few, if any, interactions with the IRS. But as more and more foreign citizens look to the United States as a place to invest, it becomes important for planners to be aware of the transfer tax laws that apply to nonresidents. Why? When a nonresident becomes a “resident” of the United States for transfer tax purposes, the rules change dramatically, and the tax consequences, if not planned for, can be severe.

November 11, 2016 in Articles, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax | Permalink | Comments (0)

Thursday, September 29, 2016

Spousal Lifetime Access Trusts

SLATModest net worth individuals need to balance their desire to make lifetime gifts with the need to maintain adequate funds to support their future. For married couples, a spousal lifetime access trust (SLAT) provides a solution. One spouse (donor-spouse) places assets into an irrevocable trust using their gift tax exemption. The SLAT names the non-donor spouse (beneficiary-spouse) as the beneficiary, allowing the trustee to make distributions to the beneficiary-spouse during life. SLATs provide several benefits, including the ability of the trust to benefit multiple generations without incurring additional estate or generation-skipping transfer taxes. 

See Spousal Lifetime Access Trusts (SLATs), Lexology, August 3, 2016. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.


September 29, 2016 in Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Trusts | Permalink | Comments (0)

New Rev. Proc. Allows QTIP Election with Portability Election

Qtip elecitonThe 2010 amendment of IRC § 2010(c) allowed an estate executor to make a portability election; therefore, influencing the decision to make a qualified terminable interest property (QTIP) election. A QTIP election reduces the decedent’s taxable estate, further maximizing the amount of unused exclusion available for the decedent’s surviving spouse. Accordingly, the executor electing portability of the decedent’s unused applicable exclusion amount may wish to make a QTIP election, regardless of whether the QTIP election reduces the estate tax liability to zero.  

Rev. Proc. 2001-38, 2001-24 I.R.B. 1335 details a procedure for which the IRS will disregard and nullify federal estate, gift, and generation-skipping transfer tax for purposes of a QTIP election made when the election was unnecessary to reduce the estate tax liability to zero. With the use of portability elections, the ability to void and nullify QTIP elections in Rev. Proc. 2001-38 may bring questions over the ability of the decedent’s estate to make an unnecessary QTIP election for the sake of maximizing the available unused exclusion amount. Subsequently, this revenue procedure modifies and supersedes Rev. Proc. 2001-38. It confirms the IRS procedures for disregarding a QTIP election, but excludes those estates that made a portability election in accordance with § 2010(c). 

See 26 CFR 601.201: Rulings and Determination Letters; Rev. Proc. 2016-49.


September 29, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, New Legislation | Permalink | Comments (0)