There are several tools you can use to build flexibility into your estate plan. Flexibility is especially important now because of an uncertain estate planning environment.
The federal gift and estate tax exemption currently is an inflation-adjusted $11.58 million (the highest it’s ever been) but it’s scheduled to drop to its pre-2018 level of $5 million (indexed for inflation) on January 1, 2026. This window of opportunity could close sooner, however, depending on the results of this fall’s election. One of the most versatile tools available to add flexibility to your estate plan is the power of appointment.
How does it work?
A power of appointment is simply a provision in your estate plan that permits another person — a beneficiary, family member or trusted advisor, for example — to determine how, when and to whom certain assets in your estate or trust will be distributed. The person who receives a power of appointment is called the “holder.”
These powers come in several forms. A testamentary power of appointment allows the holder to direct the distribution of assets at death through his or her will or trust. An inter vivos power of appointment allows the holder to determine the disposition of assets during his or her lifetime.
Powers may be general or limited. A general power of appointment allows the holder to distribute assets to anyone, including him- or herself. A limited power has one or more restrictions. In most cases, limited powers don’t allow holders to distribute assets for their own benefit (unless distributions are strictly based on “ascertainable standards” related to the holder’s health, education or support). Typically, limited powers authorize the holder to distribute assets among a specific class of people. For example, you might give your daughter a limited power of appointment to distribute assets among her children.
The distinction between general and limited powers has significant tax implications. Assets subject to a general power are included in the holder’s taxable estate, even if the holder doesn’t execute the power. Limited powers generally don’t expose the holder to gift or estate tax liability.
Dealing with uncertainty
Powers of appointment provide flexibility and enhance the chances that you’ll achieve your estate planning goals. They allow you to postpone the determination of how your wealth will be distributed until the holder has all the relevant facts. If you’d like to build more certainty into your estate plan, please contact us.
© 2020 Covenant CPA
The novel coronavirus (COVID-19) pandemic has refocused people’s thoughts on the health and safety of their families. In addition to taking the necessary steps today to protect your loved ones, it’s equally important to consider their financial security in the future.
If you don’t have a will, drafting one should be your first step in developing a comprehensive estate plan. Because of stay-at-home orders in many states, it may be tempting to turn to online do-it-yourself (DIY) tools that promise to help you create a will (and other estate planning documents). Even though this may be a relatively cheap option, using these online tools is risky except in the simplest cases.
A will that isn’t executed properly under state law isn’t legally binding. Therefore, your assets may be divided according to state intestacy laws, regardless of your intentions. And, if you have young children, a court may appoint their legal guardian.
No “one-size-fits-all” solution
Despite what you might have read online, there’s no single prototype for wills. It’s complicated because the laws can vary widely from state to state. For instance, some states recognize oral wills, while others don’t. Or a state may require two or even three attesting witnesses.
One common mistake of DIY wills is leaving out important provisions that can lead to challenges in the future. Case in point: If the will doesn’t include a residuary clause addressing amounts that are “left over” after estate debts and tax payments have been settled, an unspecified party could walk away with a large sum of money. It might even be a family member you had wanted to “disinherit.”
Turn to a professional
The bottom line is that there is too much risk by taking shortcuts when it comes to drafting your will. Have your will drafted and executed by a reputable attorney. Questions? Contact us.
© 2020 Covenant CPA
If you have outstanding loans to your children, grandchildren or other family members, consider forgiving those loans to take advantage of the current, record-high $11.58 million gift and estate tax exemption. Bear in mind that in 2026, the exemption amount will revert to $5 million ($10 million for married couples), indexed for inflation.
Under the right circumstances, an intrafamily loan can be a powerful estate planning tool because it allows you to transfer wealth to your loved ones free of gift taxes — to the extent the loan proceeds achieve a certain level of returns. But an outright gift is a far more effective way to transfer wealth, provided you don’t need the interest income and have enough unused exemption to shield it from transfer taxes.
Do intrafamily loans save taxes?
Generally, to ensure the desired tax outcome, an intrafamily loan must have an interest rate that equals or exceeds the applicable federal rate (AFR) at the time the loan is made. The principal and interest are included in the lender’s estate, so the key to transferring wealth tax-free is for the borrower to invest the loan proceeds in a business, real estate or other opportunity whose returns outperform the AFR.
The excess of these investment returns over the interest expense is essentially a tax-free gift to the borrower. Intrafamily loans work best in a low-interest-rate environment, when it’s easier to outperform the AFR.
Why forgive a loan?
An intrafamily loan is an attractive estate planning tool if you’ve already used up your exemption or if you wish to save it for future transfers. But if you have exemption to spare, forgiving an intrafamily loan allows you to transfer the entire loan principal plus any accrued interest tax-free, not just the excess of the borrower’s returns over the AFR.
It can be a strategy for taking advantage of the increased exemption amount before it disappears at the end of 2025. Of course, if you need the funds for your own living expenses, loan forgiveness may not be an option.
What about income taxes?
Before you forgive an intrafamily loan, consider any potential income tax issues for you and the borrower. In most cases, forgiving a loan to a loved one is considered a gift, which generally has no income tax consequences for either party.
Although forgiveness of a loan sometimes results in cancellation of debt (COD) income to the borrower, the tax code recognizes an exception for debts canceled as a “gift, bequest, devise or inheritance.” There’s also an exception for a borrower who’s insolvent at the time the debt is forgiven. But be careful: If there’s evidence that forgiving a loan isn’t intended as a gift — for example, if the borrower doesn’t have the cash needed to make the loan payments but isn’t technically insolvent — the IRS may argue that the borrower has COD income.
We can assist you in determining whether forgiving loans is a good strategy and, if it is, help implement that strategy without triggering unwanted tax consequences.
© 2020 Covenant CPA
Many people’s estates typically include IRAs. Be aware that two major laws passed into law recently, the Setting Every Community Up for Retirement Enhancement (SECURE) Act and the Coronavirus Aid, Relief, and Economic Security (CARES) Act, have had a direct effect on IRAs.
In a nutshell, the CARES Act waives required minimum distribution (RMD) rules for IRAs (and certain defined contribution plans) for calendar year 2020. If you’re fortunate enough that you don’t need to make withdraws from your IRA, there’s an opportunity to leave more for your heirs in your retirement plan. However, bear in mind that because the SECURE Act generally put an end to “stretch” IRAs, the estate planning benefits of inheriting IRAs are somewhat muted.
RMD rules waived
Not taking RMDs in 2020 is particularly advantageous because the amount of the distribution is based on year-end 2019 account values. Otherwise, you might be forced to liquidate account assets at depressed values during the stock market downturn.
The waiver covers both 2019 RMDs required to be taken by April 1, 2020, and RMDs required for 2020. It applies for calendar years beginning after December 31, 2019.
“Stretch” IRAs eliminated
Perhaps more important for some estate plans, the SECURE Act eliminates so-called “stretch” RMD provisions that have allowed the beneficiaries of inherited IRAs and defined contribution accounts to spread the distributions over their life expectancies. Younger beneficiaries could use the provision to take smaller distributions and defer taxes while their accounts grew.
Under the SECURE Act, most beneficiaries must withdraw the entire balance of an account within 10 years of the owner’s death. However, they don’t have to follow any set schedule. They can wait and withdraw the entire amount at the end of 10 years if they wish.
The new rules apply only to those inheriting from someone who died after 2019. Thus, if you inherited an IRA years ago, you won’t be subject to the new rules with respect to your RMDs. However, when your beneficiaries inherit the IRA from you, they’ll be subject to the new rules.
Review your plans
The changes made by the CARES Act and the SECURE Act may have an impact on your retirement and estate plans. We can help you review your plans to ensure that they continue to meet your objectives.
© 2020 Covenant CPA
The novel coronavirus (COVID-19) pandemic and the resulting economic fallout is dealing a crushing blow to charitable organizations. Indeed, during a time when food banks, disaster relief and other nonprofit services are needed most by the public, their funding is suffering due to cancelled fundraising events and other factors.
If philanthropy is an important part of your legacy, now is a good time to make as many donations as possible. Your gifts reduce your taxable estate, and the Coronavirus Aid, Relief, and Economic Security (CARES) Act has expanded charitable contribution deductions.
CARES Act incentives
Individual taxpayers can take advantage of a new above-the-line $300 deduction for cash contributions to qualified charities in 2020. “Above-the-line” means the deduction reduces adjusted gross income (AGI) and is available to taxpayers regardless of whether they itemize deductions.
The CARES Act also loosens the limitation on charitable deductions for cash contributions made to public charities in 2020, boosting it from 60% to 100% of AGI. No connection between the contributions and COVID-19 is required.
Place restrictions on contributions
Before making donations, it’s wise to take steps to ensure that they’re used to fulfill your intended charitable purposes. Outright gifts may be risky, especially large donations that will benefit a charity over a long period of time.
Even if a charity is financially sound when you make a gift, there are no guarantees it won’t suffer financial distress, file for bankruptcy protection or even cease operations down the road. The last thing you likely want is for a charity to use your gifts to pay off its creditors or for some other purpose unrelated to the mission that inspired you to give in the first place.
One way to help preserve your charitable legacy is to place restrictions on the use of your gifts. For example, you might limit the use of your funds to assisting a specific constituency or funding medical research. These restrictions can be documented in your will or charitable trust or in a written gift or endowment fund agreement.
In addition to restricting your gifts, it’s a good idea to research the charities you’re considering, to ensure that they use their funds efficiently and effectively. One powerful online research tool is the IRS’s Tax Exempt Organization Search. The tool provides access to information about charitable organizations, including Form 990 information returns, IRS determination letters and eligibility to receive tax-deductible contributions.
Doing your part
During this time of national emergency, charitable organizations need your donations more than ever as demand on them is on the rise. Making gifts benefits your overall estate plan by reducing your estate’s size, and the CARES Act provides additional charitable giving incentives. Contact us for help in making charitable gifts through your estate plan.
© 2020 Covenant CPA
Generally, it’s recommended that you review your estate plan at year’s end. It’s a good time to check whether any life events have taken place in the past 12 months or so that affect your plan.
However, with a life shock as monumental as the coronavirus (COVID-19) pandemic, now is a good time to review your estate planning documents to ensure that they’re up to date — especially if you haven’t reviewed them in a number of years.
When revisions might be needed
The following list isn’t all-inclusive by any means, but it can give you a good idea of when estate plan revisions may be needed:
- Your marriage, divorce or remarriage,
- The birth or adoption of a child, grandchild or great-grandchild,
- The death of a spouse or another family member,
- The illness or disability of you, your spouse or another family member,
- A child or grandchild reaching the age of majority,
- Sizable changes in the value of assets you own,
- The sale or purchase of a principal residence or second home,
- Your retirement or retirement of your spouse,
- Receipt of a large gift or inheritance, and
- Sizable changes in the value of assets you own.
It’s also important to review your estate plan when there’ve been changes in federal or state income tax or estate tax laws.
Will and powers of attorney
As part of your estate plan review, closely examine your will, powers of attorney and health care directives.
If you have minor children, your will should designate a guardian to care for them should you die prematurely, as well as make certain other provisions, such as creating trusts to benefit your children until they reach the age of majority, or perhaps even longer.
A durable power of attorney authorizes someone to handle your financial affairs if you’re disabled or otherwise unable to act. Likewise, a medical durable power of attorney authorizes someone to handle your medical decision making if you’re disabled or unable to act. The powers of attorney expire upon your death.
Typically, these powers of attorney are coordinated with a living will and other health care directives. A living will spells out your wishes concerning life-sustaining measures in the event of a terminal illness. It says what measures should be used, withheld or withdrawn.
Changes in your family or your personal circumstances might cause you to want to change beneficiaries, guardians or power-of-attorney agents you’ve previously named.
Find calm in the middle of a storm
In the midst of the COVID-19 crisis, many people’s thoughts are turning to their families. Updating and revising your estate plan today can provide you peace of mind that your loved ones will be taken care of in the future. We can help you determine if any revisions are needed.
© 2020 Covenant CPA
You may have heard that the federal income tax filing and payment deadline has been extended from April 15, 2020, to July 15, 2020, to provide relief for taxpayers adversely affected by the coronavirus (COVID-19) pandemic.
What you may have missed is that the U.S. Treasury Department also extended the April 15, 2020, federal gift tax filing and payment deadline to July 15, 2020.
Filing gift tax returns
Generally, filing Form 709 — “United States Gift (and Generation-Skipping Transfer) Tax Return” is required if you make gifts to or for someone during the year (with certain exceptions, such as gifts to U.S. citizen spouses) that exceed the annual gift tax exclusion ($15,000 for 2019 and 2020). There’s a separate exclusion for gifts to a noncitizen spouse ($155,000 for 2019 and $157,000 for 2020).
Also, if you make gifts of future interests, even if they’re less than the annual exclusion amount, a gift tax return is required. Finally, if you split gifts with your spouse, regardless of amount, you must file a gift tax return.
As mentioned above, the deadline for filing a gift tax return has been extended to July 15, 2020. Being required to file a form doesn’t necessarily mean you owe gift tax. You’ll owe tax only if you’ve already exhausted your lifetime gift and estate tax exemption ($11.40 million for 2019 and $11.58 million for 2020). And you’re still allowed to request a filing and payment deadline extension to October 15, 2020.
Penalties and interest
Be aware that no interest, penalty or additions to tax for failure to file a Form 709 or to pay federal gift tax will be calculated on the postponed taxes for the period from April 15, 2020 to July 15, 2020. However, interest, penalties and additions to tax will begin to accrue on July 16, 2020.
Seek professional help
Estate tax rules and regulations can be complicated. If you need help determining whether a gift tax return needs to be filed, contact us. We’d be pleased to help.
© 2020 Covenant CPA
If you’ve invented something during your lifetime and had it patented, your estate includes intellectual property (IP). The same goes for any copyrighted works. These assets can hold substantial value, and, thus, must be addressed by your estate plan. However, bear in mind that these assets are generally treated differently than other types of property.
4 categories of IP
IP generally falls into one of four categories: patents, copyrights, trademarks and trade secrets. Let’s focus on only patents and copyrights, which are protected by federal law in order to promote scientific and creative endeavors by providing inventors and artists with exclusive rights to benefit economically from their work for a certain period.
In a nutshell, patents protect inventions, and the two most common are utility and design patents. Under current law, utility patents protect an invention for 20 years from the patent application filing date. Design patents last 15 years from the patent issue date. For utility patents, it typically takes at least a year to a year and a half from the date of filing to the date of issue.
When it comes to copyrights, they protect the original expression of ideas that are fixed in a “tangible medium of expression,” typically in the form of written works, music, paintings, film and photographs. Unlike patents, which must be approved by the U.S. Patent and Trademark Office, copyright protection kicks in as soon as a work is fixed in a tangible medium.
Valuing and transferring IP
Valuing IP is a complex process. So, it’s best to obtain an appraisal from a professional with experience valuing this commodity.
After you know the IP’s value, it’s time to decide whether to transfer the IP to family members, colleagues, charities or others through lifetime gifts or through bequests after your death. The gift and estate tax consequences will affect your decision. But you also should consider your income needs, as well as who’s in the best position to monitor your IP rights and take advantage of their benefits.
If you’ll continue to depend on the IP for your livelihood, for example, hold on to it at least until you’re ready to retire or you no longer need the income. You also might want to retain ownership of the IP if you feel that your children or other transferees lack the desire or wherewithal to take advantage of its economic potential and monitor and protect it against infringers.
Whichever strategy you choose, it’s important to plan the transaction carefully to ensure your objectives are achieved. There’s a common misconception that, when you transfer ownership of the tangible medium on which IP is recorded, you also transfer the IP rights. But IP rights are separate from the work itself and are retained by the creator.
Revise your plan accordingly
If you own patents or copyrights, you probably have great interest in who’ll take possession of your work after you’re gone. Contact us with any questions on how to incorporate IP in your estate plan.
© 2020 Covenant CPA
You may have several different types of trusts in your estate plan. In general, to achieve the greatest tax savings, these trusts must be irrevocable, thus requiring you to give up control over the trust assets.
Even though you appoint a trustee to oversee distribution of the trust’s assets, you can go a step further by appointing a trust protector. This person will serve as an overseer of the trustee’s actions. Taking this step can also provide you peace of mind because the trust protector has the power to alter the trust in light of changing family situations or tax laws.
Essentially, a trust protector is to a trustee what a corporate board of directors is to a CEO. A trustee manages the trust on a day-to-day basis. The protector oversees the trustee and weighs in on critical decisions, such as the sale of closely held business interests or investment transactions involving large dollar amounts.
You can confer broad powers on a trust protector. Examples include the power to:
- Remove or replace a trustee,
- Appoint a successor trustee or successor trust protector,
- Amend the trust terms to correct administrative provisions, clarify ambiguous language or alter beneficiaries’ interests to comply with new laws or reflect changed circumstances, and
- Terminate the trust.
While it may be tempting to provide a protector with a broad range of powers, it’s important to note that this can hamper the trustee’s ability to manage the trust efficiently.
Trust protector in action
Trust protectors offer many benefits. For example, a protector with the power to remove and replace the trustee can do so if the trustee develops a conflict of interest or fails to manage the trust assets in the beneficiaries’ best interests.
A protector with the power to modify the trust’s terms can correct mistakes in the trust document or clarify ambiguous language.
Choosing the right person
Appointing the right trust protector is critical. Given the power he or she has over your family’s wealth, you’ll want to choose someone whom you trust and who’s qualified to make investment and other financial decisions.
Many people appoint a trusted advisor — such as an accountant, attorney or investment advisor — who may not be able or willing to serve as trustee but who can provide an extra layer of protection by monitoring the trustee’s performance.
Choosing a family member as protector is possible, but it can be risky. If the protector is a beneficiary or has the power to direct the trust assets to him- or herself (or for his or her benefit), this power could be treated as a general power of appointment, exposing the protector to gift and estate tax liability and potentially triggering other negative tax consequences.
Due diligence is a must
Before deciding on appointing a trust protector, contact us. It’s important to review the trusts in your estate plan to ensure they’re drafted in such a way that there are no misunderstandings regarding the protector’s role and the authority you grant him or her.
© 2020 Covenant CPA
If you have a life insurance policy, you probably want to make sure that the life insurance benefits your family will receive after your death won’t be included in your estate. That way, the benefits won’t be subject to the federal estate tax.
Under the estate tax rules, life insurance will be included in your taxable estate if either:
- Your estate is the beneficiary of the insurance proceeds, or
- You possessed certain economic ownership rights (called “incidents of ownership”) in the policy at your death (or within three years of your death).
The first situation is easy to avoid. You can just make sure your estate isn’t designated as beneficiary of the policy.
The second situation is more complicated. It’s clear that if you’re the owner of the policy, the proceeds will be included in your estate regardless of the beneficiary. However, simply having someone else possess legal title to the policy won’t prevent this result if you keep so-called “incidents of ownership” in the policy. If held by you, the rights that will cause the proceeds to be taxed in your estate include:
- The right to change beneficiaries,
- The right to assign the policy (or revoke an assignment),
- The right to borrow against the policy’s cash surrender value,
- The right to pledge the policy as security for a loan, and
- The right to surrender or cancel the policy.
Keep in mind that merely having any of the above powers will cause the proceeds to be taxed in your estate even if you never exercise the power.
If life insurance is obtained to fund a buy-sell agreement for a business interest under a “cross-purchase” arrangement, it won’t be taxed in your estate (unless the estate is named as beneficiary). For example, say Andrew and Bob are partners who agree that the partnership interest of the first of them to die will be bought by the surviving partner. To fund these obligations, Andrew buys a life insurance policy on Bob’s life. Andrew pays all the premiums, retains all incidents of ownership, and names himself as beneficiary. Bob does the same regarding Andrew. When the first partner dies, the insurance proceeds aren’t taxed in the first partner’s estate.
Life insurance trusts
An irrevocable life insurance trust (ILIT) is an effective vehicle that can be set up to keep life insurance proceeds from being taxed in the insured’s estate. Typically, the policy is transferred to the trust along with assets that can be used to pay future premiums. Alternatively, the trust buys the insurance with funds contributed by the insured person. So long as the trust agreement gives the insured person none of the ownership rights described above, the proceeds won’t be included in his or her estate.
The three-year rule
If you’re considering setting up a life insurance trust with a policy you own now or you just want to assign away your ownership rights in a policy, contact us to help you make these moves. Unless you live for at least three years after these steps are taken, the proceeds will be taxed in your estate. For policies in which you never held incidents of ownership, the three-year rule doesn’t apply. Don’t hesitate to contact us with any questions about your situation.
© 2020 Covenant CPA