DEAL FOR A WEEK; New Forms & Books

The challenges of 2023 are an opportunity to address planning from a fresh perspective.  There is a window of opportunity that may remain indefinitely – or may be closed in a few years– never to return in the client’s lifetime. The phrase “use it or lose it” may be appropriate.

The 2023 Estate and Tax Client Planning Letter encourages clients to take a fresh look at their planning situation to be sure that their decisions and documents express and memorialize those decisions, are up to date and take maximum advantage of the estate planning, income tax and business planning opportunities offered by the tax law.  

SAVE when you purchase three Life Insurance Trust Forms including:

1) Irrevocable Life Insurance Trust With Crummey Powers And Sample Crummey Letter (40 Pages)
2) Irrevocable Survivorship Life Insurance Trust With Crummey Powers And Sample Crummey Letter (33 Pages)
3) Split Dollar Life Insurance Agreement (With Irrevocable Life Insurance Trust As Policy Owner) And Collateral Assignment Of The Policy To The Employer By The Trustee (11 Pages).

Click "Learn More" above for more information about our 5 Irrevocable Trusts.  Alternatively, each Irrevocable Trust may be purchased individually.

With recent health and political concerns, more practitioners will be asked for help administering estates than in many years.

The window to take advantage of generous GST planning opportunities and to repair GST planning mistakes might be closing.  Political risk suggests at least the possibility that the current generous GST exclusion may be reduced substantially. This is a critical time to discuss GST planning with clients.

This document is an Incomplete Non-Grantor Trust (“ING Trust”). It is drafted with a Nevada Trustee, and intended to have Nevada as its situs, but it may be used as a template for other states which do not have a state income tax (South Dakota, Alaska, Delaware (for non-residents) Wyoming, etc.) where ING Trusts are favored. In such other states, it is necessary to have a trustee situated in that state as the trustee. Attention should be paid to determine if other states have specific provisions that should be added to this document.

The purpose of an ING Trust is to hold assets of a taxpayer who resides in a high-income tax state and allow those assets to not be subjected to income tax in the state of the taxpayer’s residence, since the trust is not a grantor trust of the taxpayer. Instead, the trust is created as a non-grantor trust, subject to the income tax laws of the state where the trust is located, in this case, Nevada. Since Nevada does not have an income tax, the income is not subjected to state tax if it is not distributed. If it is distributed, then it is subject to the income tax laws of the state of the distributee’s residence.

An ING is used by people in high income tax states (like CA for example) to move intangible investment assets into it to avoid the income from them being subjected to CA income tax. Thus, it is a “device” designed to eliminate state (not federal) income tax.

Last November, Massachusetts passed a new law increasing the income tax rate on incomes over $1 million by 4%. For those clients, an ING might be very appealing.

Of course, advisers need to check their state law. New York passed a law saying if you have an ING it will still be taxed by New York as a grantor trust (income taxed to the grantor). However, New York residents might still create INGs and see if New York law holds up. 

This is an Irrevocable Generation-Skipping (GST) Trust for child (for life), then for grandchildren i.e. more of a 2-generation trust than a Dynasty Trust. The limited power of appointment must be exercised for descendants and the default is to descendants if the power is not exercised. Thus, clearly there are GST implications.

Portability allows the estate of a decedent who is survived by a spouse to make an election to transfer the decedent's unused federal transfer tax exclusion. In this December 2022, 80-mimute program, Mr. Siegel gives a useful and comprehensive explanation of portability. Please see "Details" below for the many topics he covers.

Mr. Siegel clearly explains twenty-eight key changes that are included within SECURE Act 2.0 in this eleven page detailed written description.

Included in the Consolidated Appropriations Act of 2023, signed on December 29, 2022, is the Setting Every Community Up for Retirement Enhancement (SECURE) Act 2.0. The Act is very wide-ranging in its coverage. It expands coverage of more workers, provides opportunities for increasing retirement savings at low and high income levels, further defers the age at which required minimum distributions must occur, offers relief from excise taxes when various hardships occur, reduces penalties for insufficient plan withdrawals, allows greater protected savings for disabled persons, and much more.

SPOUSAL LIFETIME ACCESS NON-GRANTOR TRUST (SLANT)

Necessary Clause 

          In order for a SLANT to be a non-grantor trust, it is imperative that there be one or more adverse parties who must consent to distributions to the grantor’s spouse. By definition, an adverse party is any person having a substantial beneficial interest in the trust that would be adversely affected by the exercise or non-exercise of the power he or she holds with respect to the trust. See I.R.C. § 672(a).

           This typically requires a child as beneficiary (in this trust) to be required to consent. If desired, other persons could be given a “substantial” beneficial interest in the trust (siblings?) to increase the number of adverse parties, if desired. Trustees, as such, are not adverse parties. Neither is the spouse of the grantor.

Reasons For A SLANT

           Some advantages of the SLANT over the more commonly used SLAT include:

1. If a SLAT has been or will be used, the SLANT is different, so the reciprocal trust concerns surrounding SLATs can be avoided.
2. Use of a SLANT separate from the SLAT (which is a grantor trust) that holds real estate, should generate an “extra” state and local tax deduction in light of the SALT limitation.
3. A SLANT involved in business activity may qualify for the QBI deduction separate from the grantor.
4. The SLANT’s business activity may qualify for the Qualified Small Business Stock exclusion under IRC 1202.
5. The SLANT’s business activity may allow income to avoid the net investment income tax under IRC 1411.
6. As a non-grantor trust, a SLANT may take advantage of the unlimited charitable deduction under IRC 642(c).
7. Creditor protection may be enhanced.
8. State income taxes may be avoided if the SLANT is drafted as an Incomplete Non-Grantor Trust (ING).
9. If new legislation makes grantor trusts includable in the grantor’s estate, the SLANT will avoid that characterization.

Disadvantages Of A SLANT

1. A dependency on identification and actions of adverse parties may limit distributions.
2. If income not distributed to individual beneficiaries, it will be taxed at the compressed (unfavorable) income tax rates.