The Importance of Identifying Objectives
Good estate planning basically involves achieving estate planning goals in the most efficient way while seeking to minimize taxes and other costs.
The primary emphasis is properly on the individual’s objectives. Sometimes, however, the objectives (including charitable goals) are not clearly framed. A good professional advisor can help bring those objectives into clear focus.
The tax laws, of course, sometimes tend to shape the estate plan. Due to major tax legislation enacted in recent years, estate plans may need to be examined in light of the fact that many more persons are no longer subject to the same level of gift and estate taxes as in past years. Careful planning can help reduce or eliminate any estate and gift taxes that may still be due.
When it comes to charitable gifts and bequests, there is a broad range of options afforded by the tax law. These often include one or more very attractive ways to achieve important non-charitable objectives, such as providing for one’s spouse, children or other special person, while achieving substantial tax savings.
In any event, for many people estate plans cannot be called complete unless charitable giving wishes have been considered.
Federal Estate and Gift Tax Considerations
Gift and estate taxes: The Tax Cuts and Jobs Act of 2017 continued the trend toward reducing the impact of federal estate and gift taxes on personal estate planning. Effective January 1, 2018, the Act doubled the planned $5.6 million estate and gift tax exemption amount to $11.18 million for individuals and $22.36 million for a married couple. These amounts will continue to be indexed for inflation in future years. The maximum tax rate remains 40% for estate and/or gift taxes beyond the exemption amount.
As in the past, unlimited amounts can still be transferred for charitable purposes free of estate and gift taxes. The reduction of estate and gift taxes at the federal level on amounts left to family and other loved ones may now mean that more is available to make charitable gifts during lifetime and at death by those who are charitably inclined.
Treatment of “stepped-up basis”: As a result of the 2017 tax law revisions, the process of estate planning will assume new dimensions. Those who have delayed planning due to prior uncertainty will want to make appropriate revisions to their estate plans now that rates and exemptions appear to be permanent for the foreseeable future. For those who still anticipate that their estates will be subject to estate and gift taxes due to size, planning tools that help transfer assets tax effectively to loved ones and charitable interests during lifetime and/or at death may assume even greater importance. These plans can make it possible in some cases to increase the amount of property that can be transferred under gift and estate tax exemptions.
Annual gift exclusion: In addition to the amounts shown in the previous charts, an individual can give up to a certain amount each year to as many other persons as he or she wishes without having to pay tax on the gifts (IRS section 2503(b)). For many years, the annual gift exclusion amount was $10,000. Since 1999, however, it has been indexed for inflation. For 2018 the amount is $15,000. Check for the current amount before completing gifts.
The annual gift exclusion, however, is available only with respect to gifts of “present interests.”
Gift-splitting: Gift-splitting by spouses permits a gift made by one spouse to be treated as having been made one-half by each spouse (IRC section 2513). Gift-splitting allows the annual exclusion to be effectively doubled. It also “shifts” half of any taxable portion of the gift to the non-donor spouse for purposes of the unified gift and estate tax credit.
Gift-splitting can be accomplished only by filing a timely federal gift tax return (Form 709) and signifying consent to gift-splitting on the return (IRC section 2513(b)). An election to split gifts applies to all gifts made during the calendar year by the spouses (IRC section 2513(a)(2)).
Charitable gifts and bequests: In general, any amount can be given to a qualified charity during life or at death free of federal gift and estate taxes, because of the unlimited gift and estate tax charitable deductions (IRC sections 2055and 2522).
In the case of an outright donation in excess of the annual exclusion amount, the first portion of the gift qualifies for the annual gift exclusion under IRC section 2503(b); the balance of the gift qualifies for the gift tax charitable deduction.
Combined charitable and marital deduction planning techniques: Federal estate tax law allows an unlimited marital deduction for qualified transfers to one’s surviving spouse (IRC section 2056). Combining the benefits of the unlimited marital deduction with the benefits of the unlimited charitable deduction can be especially advantageous.
Example 1: Mrs. Taylor wishes to leave $25,000 by will to a charitable organization. Rather than leaving the bequest directly to the charity, she includes the $25,000 in the amount she leaves to her husband (tax free under the marital deduction).
Mr. Taylor then voluntarily gives the $25,000 to the organization—saving personal income taxes. This plan can work well when both spouses share the same charitable objectives because it provides both estate and income tax savings.
Example 2: Mr. Smith wants to establish a trust under his will to provide an income to his wife for her life. He and his wife agree that the remainder interest in the trust should go to a favorite charitable organization.
Mr. Smith’s will can establish, for example, either a “QTIP” trust with a charitable remainder (IRC section 2056(b)(7)) or a qualified charitable remainder annuity trust or unitrust, as defined in IRC section 664.
In either case, assuming all applicable requirements are met, the assets left to the trust will be fully shielded from estate tax at both Mr. and Mrs. Smith’s deaths because of the unlimited marital and charitable deductions.
In the preceding example, the QTIP trust would allow for considerable flexibility, in that Mrs. Smith would receive all trust income for life and could be given the right to receive trust principal under whatever terms and conditions Mr. Smith wished to provide.
Charitable remainder trusts: The charitable remainder annuity trust or unitrust, on the other hand, would provide Mrs. Smith with either (1) a fixed annuity type of payout or (2) a payout equal to a fixed percentage of the annually determined asset value of the trust. Apart from the annual payout, Mrs. Smith could not receive any amounts of trust income or principal.
Applicable law provides for a minimum payment percentage of 5%, a maximum payout rate of 50% and a 10% minimum charitable remainder amount for charitable remainder trusts. Particular care should be given to drafting provisions of testamentary charitable remainder trusts.
Generation skipping transfer (GST) tax: This area of the law is quite complicated; however, charitable gifts may minimize the amount of transfer tax owed for some estates. It is one consideration to explore if the support of future generations is one of the person’s goals and if the estate would otherwise be affected by the generation skipping transfer tax. Under terms of federal tax legislation in 2017, the amount exempt from the GST tax was also increased to $11.18 million per individual (as indexed for inflation).
For details on the GST tax, see Code sections 2601–2663 and the corresponding regulations, and check for the latest changes in the law governing this provision.
Charitable lead trusts: A charitable lead trust is a trust that makes an annuity or unitrust payout to a qualified charitable organization for a specified term of years (or for a life or lives) and then distributes its assets, usually to the donor’s children or grandchildren (see IRC sections 2055(e)(2)(B), 2522(c)(2)(B)).
The initial present value of the charitable payout qualifies for the gift or estate tax charitable deduction, as the case may be. The taxable transfer to the heirs, therefore, is equal to the difference between the amount given to the trust and this present value.
For a person who has a large estate—often an unmarried individual who cannot take advantage of the marital deduction—the lead trust is often an option well worth considering from gift and estate tax standpoints. The lead trust may offer welcome opportunities to reduce or eliminate estate and gift taxes that may still apply in the wake of the tax law changes in recent years.
In the case of a charitable lead annuity trust that distributes its assets to the donor’s grandchildren or other “skip persons,” special GST tax rules apply. For details, see IRC section 2642(e).
Power of attorney: In some cases, a donor has established a plan for making regular charitable gifts. If asked, the donor might well reply that he or she would like the plan to continue in the event he or she becomes incapacitated.
If this is the person’s wish, assuming he or she creates a durable general power of attorney, an express provision should be included in the power directing the attorney-in-fact as to the making of contributions out of the donor’s assets.
Contributions made pursuant to such a provision will be deemed to be made by the donor.
Conclusion
There are, of course, many more “technical” considerations involved in charitable estate and gift planning than those covered in this technical advisory section. Always consult appropriate advisors for recent changes in the law before making estate and financial plans that may have tax and other financial implications.
