In estate planning, there is a “use it or lose it” situation which might need to be completed before the end of the year. On December 17, 2010, President Obama, signed the Tax Relief Unemployment Insurance Reauthorization and Job Creation Act of 2010. The Act made significant changes to the estate, gift and generation-skipping tax regimes. It reduced the rates of estate, gift and GST tax to 35% and increased the estate, gift and GST tax exemptions to $5,000,000. It also reunified the estate and gift-tax exemptions where previously they were disparate. These provisions of the Act, will remain in effect only through the end of 2012. The Act is scheduled to sunset. This means that it will no longer be effective and the estate, gift and GST law will revert to the old law with not nearly the advantages. Unless Congress enacts new legislation prior to then, beginning in January of 2013, the law will revert to the laws in effect in 2001 and the top estate, gift and GST tax rates would revert to 55% with an exemption of only $1,000,000 and the GST exemption of $1,000,000 but the GST would be indexed for inflation. Accordingly, in order to avail yourselves of the benefits available under the 2010 Act, clients must consider engaging in the planning techniques that are discussed below as soon as possible. These techniques will significantly, likely reduce the taxable estate but only if they are taken advantage of during the period of the applicability of the 2010 Act. The tools at our disposal this year, but not necessarily after this year is the ability to make a non-taxable gift of $5,000,000.00. This amount is set to sunset back to $1,000,000.00. Gifting can be accomplished through trusts where one is unwilling to divest full authority to the client. Leveraging the full $5,000,000 can be accomplished through the use of LLC’s or Family Limited Partnerships. Where the taxpayer is desirous of gifting more than $5,000,000 this can be done subject to gift-tax but at the lower 35% rates. The sale to an intentionally defective grantor trust is also an available tool which is recommended in many circumstances. GRATs are also possible under current law. It is recommended that estate planning be taken advantage of during the year 2012. Accordingly, take action now or perhaps lose this valuable opportunity forever.
