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With the election less than a week away, the phones are ringing off the hook for estate planning attorneys and accountants.
That’s because wealthy families fear that an overhaul of the estate and gift tax exemption — the amount of assets they can transfer without a 40% levy — is just around the corner.
“For tax nerds, it’s like our Super Bowl,” said Alison Hutchinson, managing director at Brown Brothers Harriman in New York. “There are lots of conversations with people who are interested in getting everything set up and ready to go.”
In 2018, the Tax Cuts and Jobs Act roughly doubled the amount wealthy individuals could transfer either over their lifetime or in a bequest without being subject to the 40% estate or gift tax. In 2020, it’s sitting at $11.58 million per individual, or $23.16 million for a married couple.
But that provision is due to expire at the end of 2025, when it will revert to about $5 million per individual.
A “blue wave” in Washington — that is, Democrats sweeping the White House and Senate, while maintaining a majority in the House — could hasten the demise of the hefty estate and gift exemption.
Indeed, Democratic presidential candidate Joe Biden’s tax plan would reduce the amount people can pass on at death free of taxes to $3.5 million and limit the amount individuals can transfer in gifts to $1 million, according to an analysis from the Tax Policy Center.
Gift and estate taxes could also rise to 45%, the center found.
Biden has also proposed doing away with the step-up in basis, a provision in the tax code that permits heirs to receive assets valued as of the date of death. In this case, an heir who sells the asset right away would pay little to no capital gains on it.
Instead, Biden proposes taxing unrealized capital gains at death, according to the Tax Policy Center.
Tax professionals are walking a fine line: Nobody knows how the election will ultimately play out, so there’s some hesitation to move millions of dollars with transactions that could be hard to undo.
But that doesn’t mean wealthy clients should just sit tight.
“You can’t say you won’t do anything until you know who won,” said Keebler. “It isn’t a 10-minute exercise to draft a trust.
“Just like an architect who’s building something that will last hundreds of years, you need to think through it.”
Here’s how those wealthy families are strategizing now, short of making massive asset transfers today.
1. Assemble your crew
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It takes a village to draft an estate plan.
Expect to consult an attorney, your CPA and your financial advisor.
“Assemble your team and make sure that your advisors are in close reach, in case you need to take action,” said certified financial planner Mark Bradford, senior vice president and wealth director of Bryn Mawr Trust Wealth Management in Bryn Mawr, Pennsylvania.
Getting an appointment on the calendar is important even now, because those professionals could be in high demand after the election.
“I think if Biden wins, I’m going to close my practice for the next eight weeks and take care of what’s in the door,” said Keebler. “There’s a limit to how many hours you can work on this stuff.”
2. Draft your balance sheet
There’s more to gifting or bequeathing assets than a transfer of ownership.
Be ready work with your financial planner to prepare a balance sheet — a statement that details your assets and liabilities — and then draft projections of what you’ll need to maintain your standard of living.
“Say you’re worth $40 million, and you determine you need $18 million to live on,” said Keebler. “We can gift away $22 million.”
If you’re planning on transferring a small business, it’s time to call up an appraiser and get a handle on its value.
Inaccurate valuations on a business may not pass muster with the IRS and could affect your plans, said Bradford of Bryn Mawr.
3. Plot out cash flow for the rest of your life
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Project cash flow needs with your financial advisor, and make sure you have set aside sufficient assets to meet them.
Cash flow assumptions should also include retirement income from pensions, Social Security and other sources.
Make sure you set aside enough for your tax bills, too.
Be aware that certain trusts generate income that’s taxable to the grantor during his or her lifetime, so there needs to be enough money to cover the cost.
“Those taxes will come out of the cash flow, and people could miss that,” said Keebler.
4. Be intentional and flexible
Estate attorneys are working on the language for estate plans and revisiting old trusts, but not all of them are encouraging clients to shift millions of dollars just yet.
“Put your plan in place with the intention that you could pivot regardless of what happens with the tax laws,” said Pam Lucina, chief fiduciary officer and head of the trust and advisory practice at Northern Trust Wealth Management in Chicago.
Flexible provisions within the trust document could include the right to substitute trust assets so that a grantor could shift investments that have a greater potential for appreciation, she said.
“The overall point is setting up the structures now and making sure they have the maximum flexibility to be able to pivot, regardless of what’s coming up,” said Lucina.