Lesson 3 of Estate Planning: Transfers Outright & In Trust Flashcards
Lifetime Transfers
When property is gifted, the FMV of the property is removed from an individual’s gross estate.
The value of the property is also removed from the individual’s gross estate when it is sold,
- but the sale does not directly reduce an individual’s overall gross estate
- since the FMV of the consideration received replaces the FMV of the property transferred.
While there is no immediate impact on the transferor’s taxable estate when property is sold for full and adequate consideration,
- a significant estate planning benefit can be realized over time if the asset sold had a significant potential for appreciation and was replaced with an asset with a lower growth potential.
Arms’s Length Transactions
An arm’s-length transaction is a transfer between:
- unrelated parties in the form of a sale,
- an installment sale, or
- an exchange.
Each transaction involves a transfer of property between individuals for valuable consideration based on the FMV of the transferred property.
Arm’s-length transactions do not attempt to reduce the transferor’s gross estate or to economically benefit the transferee.
- The buyer and the seller enter the transaction without passing property to the buyer at a reduced cost.
Arms’s Length Transactions
- Sale
A sale:
- is the direct transfer of property to another for money or property of equal FMV.
A sale does not directly affect the gross estate of the seller or the buyer, as each party to the sale has transferred one asset for another asset of equal value.
Arms’s Length Transactions
- Installment Sale
An installment sale is a sale of property in which the buyer makes a series of installment payments to the seller.
The effect of this transaction is that the buyer pays the seller the purchase price of the property over a specified term plus interest at the current market rate.
The installment payments are paid in cash over the term of the note,:
- and at the seller’s death any outstanding principal of the installment note, including any accrued interest, is included in the seller’s gross estate.
An installment sale may be entered into by a related buyer and seller with the intention of accomplishing a planning objective. The agreed-upon sales price of the property in the installment sale may be the property’s FMV, but the interest rate charged on the note may be lower than the current market rate of interest or may even be equal to zero.
In either case, the buyer benefits:
- because of the lower interest payment required
the seller benefits:
- because he will receive less interest income and will, therefore, reduce his gross estate.
There is a practical limitation on this planning technique, however. While the interest rate charged on the note may be below the prevailing market rate given the risk characteristics involved,
- the interest rate must be at least equal to the applicable federal rate in order to avoid gift loan treatment and adverse income tax consequences.
Arms’s Length Transactions
- Exchange
An exchange is a mutual transfer of assets with equal FMV between individuals.
Like the installment sale and the outright sale:
- an exchange will not directly impact a transferor’s gross estate.
Transfers to Loved Ones
- Transfers Not Subject to Gift Tax
These techniques include transfers to satisfy:
- legal support obligations,
- qualified transfers, and
- below-market rate loans.
Transfers not subject to gift tax reduce an individual’s gross estate
- without using the annual exclusion or the individual’s applicable estate tax credit amount.
Example 1:
- A grandparent pays medical or law school tuition for a grandchild. The payments are made directly to the institutions and are treated as qualified transfers not subject to gift tax. These tuition payments immediately reduce the grandparent’s gross estate without using any of the grandparent’s annual exclusion or applicable estate tax credit.
There are two example.
Transfers to Loved Ones
- Gifts Outright and in Trust
When an individual makes a gift, either outright or in trust, the gifted property is transferred to the donee or to the trustee of the trust.
Usually, outright gifts and gifts in trust are reserved for transfers to loved ones.
Ideally these gifts are:
- gifts of a present interest
- and qualify for the annual exclusion,
- reduce the transferor’s gross estate (since the donor relinquishes all control),
- remove future appreciation of the gifted property from the transferor’s gross estate, and,
- if gift tax is paid after full utilization of the applicable gift tax credit, removes the gift tax paid from the transferor’s gross estate if the transferor lives at least three years following the date of the gift.
When direct outright gifts are made,:
- the valuation of the gifted property for gift tax purposes should be documented with a proper valuation
- if the gifted property is not cash,
- marketable securities, or
- if a valuation discount is used when valuing the property.
Transfers to Loved Ones
- Partial Sale-Gift Transactions
When an individual sells an asset for an amount less than the asset’s FMV, the seller is deemed to have made a gift to the buyer:
- equal to the difference between the FMV of the property and the actual sales price.
These combination partial sale-gift transactions, also known as bargain sales, generally occur between family members:
- since the seller will only realize a discounted price from the sale in an effort to transfer the property to a family member at a reduced cost.
With a bargain sale, the property is removed from the transferor’s gross estate and is replaced by a reduced amount equal to the consideration paid by the buyer. Any appreciation or income on the property after the transaction is completed is attributable to the buyer/donee.
Exam Question - Partial Sale Gift Transaction
Bobby owned a building with a fair market value of $2,000,000. Bobby’s adjusted basis in the building was $1,000,000. Bobby agreed to sell the building to his son, Robby for $1,300,000. What is the amount of Bobby’s taxable gift?
a) Bobby has made a taxable gift of $700,000.
b) Bobby has made a taxable gift of $683,000.
c) Bobby has made a taxable gift of $2,000,000.
d) Bobby has not made a taxable gift.
Answer: B
The discount of $700,000 ($2,000,000 - $1,300,000) is treated as a gift eligible for the annual exclusion, thus creating a taxable gift of $683,000 ($700,000 - $17,000).
Transfers to Loved Ones
- Sales (Gift) and Leaseback
Sales and leaseback is an arrangement whereby a company owning fully depreciated property sells the property to a buyer (usually a family member in a low income bracket). The new owner becomes the lessor and leases the asset back to the former owner, who becomes the lessee. As a result of this transaction, the lessee receives cash from the sale of the asset and the lessee makes periodic deductible lease payments and retains the use of the asset.
This strategy may be useful to a business that has assets but is in need of investment or operating
capital. This technique works well with clients who are in high income tax brackets and are seeking to divert highly taxed income to members of the family who are in a lower tax bracket.
In the case of a gift and leaseback, the process involves giving the assets or property used in the family business to another family member. The donor may put the property into a trust and lease from the trust. This is similar to a sale and leaseback except that** no cash is exchanged.** Depending on the property value, there may or may not be gift tax considerations.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Private Annuity
There are some transfers for full and adequate consideration (typically structured as a sale of property) intended to benefit transferee loved ones that a transferor would not typically consider with an arm’s-length transferee.
Private Annuities:
- A private annuity is a transaction between two (usually related) private parties.
- The seller/annuitant sells an asset to a buyer in exchange for an unsecured promise from the buyer to make fixed payments to the annuitant for the remainder of the annuitant’s life.
- The promise must be unsecured (under the Treasury regulations).
- The annuity term is equal to the life expectancy of the seller/annuitant based on the annuitant’s age at the date of sale. The Section 7520 rate is used to determine the interest portion of each payment and the present value of the private annuity.
- While the life expectancy of the annuitant (as determined by the IRS mortality tables) is used for income tax and financial calculations, a private annuity requires payments to be made over the lifetime of the seller/annuitant, which may fall short of or exceed the life expectancy found in the IRS mortality tables.
- By selling the asset as a private annuity, the annuitant defers the recognition of any capital gain over his remaining life expectancy, receives a constant stream of income for the remainder of his life, and removes the asset transferred and any of its subsequent appreciation from his gross estate.
Exam Question - Private Annuity
Maxine agrees to purchase Jacob’s property utilizing a private annuity. Jacob’s table life expectancy is ten years at the date of the agreement, and the property has a fair market value of $400,000. The private annuity payment is $45,000 per year, and Maxine dies after making two payments. At Maxine’s death, what amount is included in her gross estate with regards to the private annuity and the transferred property?
a) $0
b) $90,000
C) $310,000
d) $400,000.
Answer: D
Maxine bought the property utilizing the private annuity. Maxine’s gross estate will include the fair market value of the property purchased.
The expected present value of the remaining private annuity payments will be a debt of the estate.
Transfers to Loved Ones
- Private Annuity
- Exhibit Illustrating Application of Private Annuity
The following exhibit illustrates the application of a private annuity with an individual whose life expectancy is 16 years as of the date of the sale. The annuity payment is calculated utilizing a term of 16 years, but if the seller outlives his life expectancy, the annuity payments continue until the seller’s death (21 years after the sale is assumed in the exhibit). On the other hand, if the seller dies prior to the term of 16 years, the annuity payments teminate ar the seller’s death (seven years after the sale is assumed in the exhibit).
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Private Annuity
- Gift and Estate tax Consequences of Private Annuities
- Private Annuity
Provided the FMV of the property transferred is equal to the present value of the life annuity, there is no taxable gift upon the sale of the property in exchange for the private annuity.
Since the annuitant does not have any right to annuity payments after his death, the value of the private annuity is zero at the death of the annuitant and is not included in the seller/annuitant’s gross estate.
Any annuity payments received before the seller’s death with be included in the seller’s gross estate to the extent the funds were not consumed.
This technique of transferring assets without triggering transfer tax is particularly effective when the actual life expectancy of the annuitant is substantially less than the table life expectancy.
The buyer makes the serial payment consisting of the interest and principal. The buyer’s interest payments are nondeductible for income tax purposes. The buyer’s adjusted basis in the property exchanged for the private annuity is equal to the total of all annuity payments actually paid. If the seller/annuitant dies shortly after the transfer, the buyer will have a low basis in the asset, which will require payment of capital gains tax if the asset is sold.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Private Annuity
- Risks
- Private Annuity
A private annuity involves investment risks for both the seller/annuitant and the buyer.
- The annuitant is selling an asset in return for an unsecured promise to pay from the buyer.
- The seller bears the risk that the buyer will not make payments (default risk).
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Private Annuity
- Income Tax Issues
- Private Annuity
From the annuitant’s perspective, each private annuity payment is split into three components:
- (1) interest (at the Section 7520 interest rate in effect at the date of the sale),
- (2) capital gain, and
- (3) income-tax-free return of capital (adjusted basis).
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Private Annuity
-
Income Tax Issues
- Examples
-
Income Tax Issues
- Private Annuity
The buyer makes the serial payment consisting of the interest and principal. The buyer’s interest payments are nondeductible for income tax purposes. The buyer’s adjusted basis in the property exchanged for the private annuity is equal to the total of all annuity payments actually paid. If the seller/annuitant dies shortly after the transfer, the buyer will have a low basis in the asset, which will require payment of capital gains tax if the asset is sold.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Self-Canceling Installment Notes (SCIN)
The SCIN transaction involves a sale for the full fair market value of the property transferred over a term defined by the seller.
The unique feature of a SCIN is that if the seller dies before all of the installment payments have been made, the note is canceled and the buyer has no further obligation to pay.
In this instance, the seller is taking the risk that he will die before receiving all payments under the SCIN and must be compensated for this risk. The buyer will pay a premium, called a SCIN premium, to compensate the seller for this risk.
The following exhibit illustrates the application of a SCIN with an individual whose life expectancy is 16 years from the date of the sale. The SCIN payment is determined using the IRC life expectancy factor, which is the maximum term of the SCIN.
- If the seller dies prior to his life expectancy (seven years as illustrated in the exhibit), however, the SCIN payments terminate at that point.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Self-Canceling Installment Notes (SCIN)
- Gift and Estate Tax Consequences
- Self-Canceling Installment Notes (SCIN)
The property transferred by a SCIN is removed from the seller’s gross estate, but the payments received will, if retained, be included in the seller’s gross estate.
There is no gift involved in a SCIN provided the:
- present value of the note less the SCIN premium is equal to the FMV of the asset transferred,
- and the SCIN premium is appropriate for the mortality risk of the transferor and the value transferred.
Like the private annuity, the SCIN is generally used when:
- the transferor is in poor health and expected to die before the end of the defined SCIN term.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Self-Canceling Installment Notes (SCIN)
- Income Tax Consequences - Buyer/Seller
- Self-Canceling Installment Notes (SCIN)
A SCIN is classified for tax purposes as an installment sale.
The buyer will make serial payments of interest and principal.
- Unlike the tax treatment that applies to private annuities, the interest (i.e., business interest, qualified residence interest, or investment interest) paid by the buyer
- for a SCIN is deductible if permitted by the IRC. In addition, the buyer’s adjusted basis in the property, regardless of the number of installment payments made, is the agreed-upon purchase price of the property, which includes the full face value of the remaining note payment.
The seller receives the installment payments in three components:
- (1) interest income,
- (2) capital gain,
- (3) return of adjusted basis, and also receives
- (4) the SCIN premium as either additional
interest income or capital gain depending upon how the SCIN premium was calculated
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Self-Canceling Installment Notes (SCIN)
- Risks
- Self-Canceling Installment Notes (SCIN)
The seller of property under a SCIN undertakes:
- default risk,
- interest rate risk,
- purchasing power risk, and
- reinvestment risk.
The buyer’s risk:
- is that the transferor outlives the SCIN term, and thus the buyer pays more for the property, by an amount equal to the SCIN premium, than he would have paid under a normal installment sale.
- The buyer also has business risk (the risk the asset is not worth the value of the note).
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Chart Comparing SCINs and Private Annuities
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Grantor Retained Annuity Trust (GRAT)
A Grantor Retained Annuity Trust (GRAT) is an:
-
irrevocable trust that pays a fixed annuity (income
interest) to the grantor for a defined term and - pays the remainder interest of the trust to a noncharitable beneficiary at the end of the GRAT term.
The GRAT is funded:
- by the grantor with a transfer of property,
- and the annuity can be a:
- stated dollar amount,
- fixed fraction, or
- a percent of the initial fair market value of the property transferred to the GRAT.
The following exhibit illustrates the formation and application of GRAT:
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Grantor Retained Annuity Trust (GRAT)
- Gift and Estate Tax Consequences
- Grantor Retained Annuity Trust (GRAT)
At the creation of a GRAT, assuming the retained annuity interest is payable to the grantor,
- the annuity portion is not subject to gift tax,
- but the present value of the expected future remainder interest, is a gift of a future interest subject to gift tax.
The value of the remainder interest is determined by:
- subtracting the present value of the expected future annuity payments from the fair market value of the original transfer to the GRAT.
The term of the annuity is defined by the grantor.
- The longer the term, the higher the present
value of the annuity payments and, thus, - the lower the value of the remainder interest for gift tax purposes.
- If the grantor of the GRAT dies during the annuity term, however,
- the fair market value of the property within the GRAT, as of the grantor’s date of death, is included in his gross estate under Section 2036.
- If this occurs, the grantor does not save any transfer tax.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Grantor Retained Annuity Trust (GRAT)
- Appropriate Time to Consider Using a GRAT
- Grantor Retained Annuity Trust (GRAT)
An appropriate time to consider using a GRAT is when:
- the transferor holds property that is expected to appreciate at a rate greater than the Section 7520 interest rate applicable to the GRAT.
At the end of the GRAT term, (provided the grantor survives the annuity term) the property will transter to the remaindermen.
- In this situation, the grantor will have transferred the appreciated remainder interest in the property at a gift tax cost
- calculated using the present value of the
remainder interest at the date of transter.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Grantor Retained Annuity Trust (GRAT)
- Risk
- Grantor Retained Annuity Trust (GRAT)
Upon creation of the GRAT, the greatest risk:
- is the grantor’s failure to survive the GRAT term, causing the FMV of the property transferred to the GRAT to be included in the grantor’s gross estate.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Grantor Retained Annuity Trust (GRAT)
- Income Tax Consequences
- Grantor Retained Annuity Trust (GRAT)
A GRAT is subject to the grantor trust rules for income tax purposes.
There are no income tax consequences on the initial transfer to the GRAT because for income tax purposes, the grantor is still deemed to own all of the assets in the GRAT.
All trust income flows through to the grantor annually, however, and is included in the grantor’s income without regard to the amount of the distributions made to the grantor.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Grantor Retained Unitrust (GRUT)
Another device similar to the GRAT is called a GRUT (Grantor Retained Unitrust).
Instead of paying a fixed annuity, a GRUT pays a fixed percentage of the trust’s assets each year as revalued on an annual basis.
The GRUT is less suitable for hard to value assets (e.g. real estate, businesses) because the annual revaluation requirement is cumbersome.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Qualified Personal Residence Trust (QPRT)
A Qualified Personal Residence Trust (QPRT) is a special form of a GRAT.
- The grantor contributes a personal residence to a trust and instead of receiving an annuity in dollars, the grantor of the QPRT receives use of the personal residence as the annuity interest component.
At the end of the trust term, the residence passes to the remaindermen,:
- and if the grantor is still living, he may then lease, at a fair-market-value rent, the property from the remaindermen and continue to use it as his personal residence.
- If the grantor dies before the expiration of the trust term, the fair market value of the residence is included in the grantor’s gross estate.
A QPRT can hold one residence. Individuals can have up to two QPRTs.
Gift and Estate Tax Consequences (QPRTs):
- The original transfer of the residence is treated as a gift to the extent that the fair market value of the residence exceeds the present value of the grantor’s retained interest (the use) as determined under Section 7520.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Tangible Personal Property Trust (TPPT)
Tangible Personal Property Trusts (TPPTs) are very similar to QPRTs, with one exception -
- a TPPT is funded with personal property, not real property.
- TPPTs usually transfer artwork, antiques, and other items of personal property that have the potential to appreciate in value.
Gift and Estate Tax Consequences (TPPTs):
- The original transfer of the personal property to the trust is treated as a gift to the extent that the fair market value of the personal property exceeds the present value of the grantor’s retained interest.
- As in the case of the QPRT, if the grantor dies during the term of the TPPT, the full fair market value of the trust property will be included in the grantor’s gross estate.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
- Family Limited Partnerships (FLP)
A family limited partnership (FLP) is a limited partnership created under state law:
- with the primary purpose of transferring assets to younger generations using valuation discounts.
Usually, one or more family members transfer highly appreciating property to a limited partnership:
- in return for both the 1% general and the 99% limited partnership interests.
- In a limited partnership, the general partner has unlimited liability and the sole management rights of
the partnership, while the limited partners are passive investors with limited liability and no management rights.
Gift and Estate Tax Consequences:
- Upon creation of the partnership, there are neither income nor gift tax consequences:
- because the entity created (the limited partnership and all of its interests, both general and limited) is owned by the same person, or persons, who owned it before the transfer.
- Once the FLP is created, the owner of the general and limited partnership interests values the limited partnership interests.
- Since there are usually transferability restrictions on the limited partnership interests (marketability), and the fact that the limited partners have little control of the management of the partnership (control), limited partnership interests are usually valued with a substantial discount.
The original transferor (grantor) then begins an annual gifting program:
- utilizing the discounts,
- the gift tax annual exclusion, and
- gift splitting (where applicable) to transfer limited partnership interests to younger generation family members.
Transfers to Loved Ones
- Full Consideration Transfer/Sales
-
Family Limited Partnerships (FLP)
- Example
-
Family Limited Partnerships (FLP)
Transfers to Loved Ones
- Full Consideration Transfer/Sales
-
Family Limited Partnerships (FLP)
- Asset Control
- Asset Protection
- Design and Implementation
-
Family Limited Partnerships (FLP)
Asset Control:
- One of the unique features of the FLP, and perhaps its most important non tax benefit, is that the original owner/transferor can maintain control of the property transferred to the limited partnership by only retaining, a small general partnership interest.
Asset Protection:
- The use of the FLP structure can also help protect family assets
Design and Implementation:
- The creation of family limited partnerships and the use of discounts to transfer value at a lower gift tax cost has been regularly contested by the IRS. In several cases, however, the courts have ruled in favor of the taxpayer and upheld discounts on the valuation of limited partnership interests in the range of 10 percent to 40 percent, as long as the FLP was operated like a separate business.
- The FLP should possess economic substance by having its own checking accounts, tax identification number, payroll (including payment of reasonable compensation to the general partner if he is managing the business), and should not allow family members to withdraw funds at will, nor should the FLP pay for personal expenses of its owners.
Exam Question - Intrafamily Transfer to Trusts
Alton would like to transfer the ownership of his Picasso painting to his son Edgar, but Alton would like to continue to have the painting hanging in his house. Which of the following would you recommend to Alton?
a) TPPT.
b) CRAT
C) QPRT.
d) FLP
Answer:
B is incorrect because Alton’s son Edgar is not a charity.
Answer C is incorrect because a QPRT, or Qualified Personal Residence Trust, is a special form of a GRAT to which the grantor contributes his personal residence.
Answer D is incorrect because a FLP would be more appropriate for transferring ownership of a family business than ownership of a painting.
Answer A is correct because TPPTs or Tangible Personal Property Trusts are funded with per-
sonal property and the grantor retains the right to use the property that has been transferred to
the trust.
CRAT is a charitable personal residence trust.
Exan Question - Transfers/Sales
Marie is the founder and sole owner of Purple Cakes Bakery. Allen has offered to buy her business for a price Marie considers reasonable, but Allen does not have all of the funds necessary to pay for the business at the current time. Marie is in good health, her true life expectancy is much greater than the IRS life expectancy factor, and she wants to accept Allen’s offer. Allen is not related to Marie and has good credit. Given these facts, which transfer method should be used to transfer the business to Allen?
a) Grantor Retained Annuity Trust.
b) Self-Canceling Installment Note,
c) Private Annuity.
d) Installment Sale.
Answer: D
Marie would sell the business to Allen utilizing a installment sale and would charge a reasonable rate of interest. Because Allen would not have to pay the full sale price at the date of the transfer, he would not need to have all of the funds necessary at that time. Because Allen is not related to Marie, she would not have any reason to enter into a GRAT, SCIN, or Private Annuity, which may inequitably benefit Allen. The best situation would be for Marie to sell the business to Allen in an outright cash sale, but that is not an option in this problem.
Medicaid
- What Is It?
- What Qualifies You For Medicaid?
Like Medicare, Medicaid is a health insurance program sponsored by the federal government but administered by the individual states. Medicaid is primarily intended to benefit certain low-income individuals and families.
Unlike Medicare, the Medicaid program will pay for long-term care in a nursing home for persons who meet the qualifications:
- US Citizen or resident alien permanently residing in the US.
- Age 65, disabled, or blind.
- ACA authorized expansion of Medicaid to American under age 65 who meet income limits, not all states have adopted this model.
- Children’s Health Insurance Program (CHIP) provides medical insurance for children under age 19 for families that don’t qualify for Medicaid.
- Must meet income and asset tests that very by state. Most follow guidelines set by the federal Supplemental Security Income (SSN) program. For SSI, there is a limit of $2,000 on countable assets for in individual and $3,000 for a married couple when both are receiving care. The assets specifically not counted:
- Home (typically $525,000 to $750,000 of equity, some exceptions apply if applicant may return home or if it used by dependents);
- Car and personal property;
- Term life insurance, whole life with little to no cash value, retirement accounts;
- Real or personal property used in business or for the production of income.
- To be eligible individuals must not only lack assets, but must also receive a low level of income.
- There are state varying limits, but commonly the income standard is 133% of the federal poverty
level. In 2023 the federal poverty level for a family of 2 is $19,720 annually.
- There are state varying limits, but commonly the income standard is 133% of the federal poverty
Medicaid
- Medicaid Requirements are Strict?
- Due to Increasing of People Giving Away Assets In Order to Qualify for Medicaid
Because the Medicaid eligibility requirements are strict, particularly with respect to the applicant’s income and resources, individuals often seek to plan for their Medicaid eligibility long before they need it.
Due to the increasing frequency of people giving away their assets in order to try to qualify for Medicaid, the federal government has adopted a penalty test that imposes a period of ineligibility upon anyone who gives away their assets in order to qualify for the income or resource requirements of Medicaid.
- If an individual has transferred assets for less than FMV, the state must withhold payment for nursing facility care (and certain other long-term care services) for a period of time referred to as the penalty period.
- States can “look back” to find transfers of assets for 60 months prior to the date that the individual applies for Medicaid.
Medicaid
- Chart is a Summary of Transfer During Life
Medicaid
- Medicaid Penalty Period Calculation
Medicaid Penalty Period Calculation for nursing homes is equal to the amount of money gifted or transfered in the 60 months prior to application, divided by the cost of the nursing home.
The time their transfered assets would pay for becomes the penalty period after they spend down their assets to an amount of Medicaid eligibility.
- Bernice enters the nursing home with $50,000 in assets and applies for Medicaid. In the prior 60 months, she gifted 70,000 to her 7 grandchildren. The cost of the nursing home is $10,000 a month. Bernice’s assets will pay for the first 5 months of care. She will then face a 7 month penalty period before Medicaid will pay for her care.
Some transfers are permitted and will not cause a period of Medicaid ineligibility. Transfers to a :
- spouse,
- child who is blind or disabled, trust for the benefit of someone under age 65 and disabled,
- transfer of a home to a child under age 21 that has lived in the home at least 2 years prior to the transfer to a nursing home, or
- transfer of a home to a sibling who has an equity interest in the home or lived in it for at least a year before the applicant moved to the nursing home.
Federal government requires states to try to recover Medicaid costs. States generally pursue two approaches to cost recovery:
- (1) from the deceased individual’s estate, and
- (2) from liens on the individual’s property.
Long-term care partnership programs where established between the federal government and a majority of the states. These partnerships were created to encourage more people to purchase private long term care insurance to lessen the burden on Medicaid.
- These programs establish special eligibility rules that allow individuals who purchase private long-term care insurance policy to qualify for Medicaid payments for long-term care after the insurance policy pays for the initial period of care.
Transfers at Death
- Transfers by Will
A will is a legally enforceable document that transfers property to designated beneficiaries at death. To be effective, a will should meet the minimum requirements set forth under state law.
After the debts, expenses, and taxes have been paid, the remaining property is transferred to the beneficiaries, generally in the following order:
- Personal property is transferred to legatees.
- Real property is transferred to devisees.
- Residuary legatees take anything remaining in the estate that has not been specifically disposed of by will.
- The residuary estate consists of what is left after all specific bequests have been satisfied. If the estate is not sufficient to discharge all of the decedent’s bequests and the decedent has not expressed a preference, the order of disposition will be determined under decedent’s resident state law.
Universal/Residual Legatees:
- A universal legacy is created when the testator gives to one or several persons his entire estate (all of my estate to A). A residual legatee receives the balance of the estate after all specific bequests are satisfied.
Per Stirpes/Per Capita:
- In the event a child named as a residual or universal legatee is dead, or disclaims his interest, and such predeceased child has children, those children may take by representation per stirpes or per capita.
Disinheritance:
- A testator may attempt to disinherit specific people, or a class of people, by not listing them as legatees in the will. Simply not listing an heir in a will may not be sufficient to disinherit.
Transfers at Death
- Property Transferred at Death by Contact
There are a number of ways to transfer property at death by contract. These include use of:
- life insurance,
- annuities,
- qualified plans,
- individual retirement plans (IRAs),
- transfer-on-death accounts (TODs),
- Totten Trusts, and
- payable-on-death bank accounts (PODs).
The beneficiary named under the contract will be the recipient of the property upon the decedent’s death.
Transfers at Death
- Transfers at Death by Operation of Law
Titling:
- Two forms of titling that have survivorship features are:
- joint tenancy with right of survivorship and
- tenancy by the entirety.
Trusts:
- An irrevocable trust will operate in accordance with the terms of its governing instrument and is not subject to the probate process.
- Some trusts are created by will (testamentary trusts), or are created (but not funded) prior to the grantor’s death waiting for assets to be transferred to them pursuant to the terms of the grantor’s will (standby trusts).
- Care must be taken if assets under the will are to pour over to a preexisting trust or if nonwill assets (e.g., those under contract) are to pour over to a testamentary trust (beneficiary of life insurance is the XYZ trust, a testamentary trust).
Transfers at Death
- Charitable Transfers at Death
All property of the decedent at death must be included in the gross estate.
- There is, however, an unlimited charitable estate tax deduction.
- There is no income tax deduction for assets left to a charity at death.
In the event a split interest charitable remainder trust (CRT) is established at death,
- the charitable estate tax deduction is equal to the FMV of the property transferred to the CRT less the discounted present value of the retained interest (the annuity or unitrust). The annuitant could be the surviving spouse or some other person.
In order for such property to qualify for the unlimited marital deduction,
- the surviving spouse must be the only noncharitable beneficiary.
Trusts!
- Basic Structure of a Trust is Depicted by the Following Diagram
Definitions
- Trust
A trust is a structure that vests legal title to assets in one party, the trustee, who manages those assets for the benefit of the beneficiaries of the trust.
- The beneficiaries hold the beneficial, or equitable, interest in the trust.
- To form a trust, a grantor of a trust transfers money or other property to the trustee.
- The money or property transferred is referred to as the trust principal, corpus, res, or fund.
- The trust principal will be managed by the trustee to accomplish the grantor’s objectives as expressed in the provisions of the trust document.
Parties
- Grantor
The grantor (also known as settlor, trustor, or creator) is the person who creates and initially funds the trust.
The grantor establishes the terms and provisions of the trust
- and determines the scope and limits of the trustee’s actions and discretion in managing the trust assets.
A trust may have multiple grantors.
Parties
- Trustee
The trustee is the:
- individual or entity responsible for managing the trust assets and
- carrying out the directions of the grantor that are formally expressed in the trust instrument.
A trustee is vested with legal title to the trust assets, but must, at all times, act in the best interest of trust beneficiaries. As such, the trustee is considered to be a fiduciary.
The law imposes several duties to ensure that a fiduciary always acts in the best interests of those he is charged to protect. Among these duties are:
- (1) the duty of loyalty and
- (2) the duty of care.
These duties of loyalty and care can be summarized in a concept referred to as the Prudent Man Rule.
- The Prudent Man Rule states that the trustee, as a fiduciary, must act in the same manner that a prudent person would act
- if the prudent person was acting for his own benefit after considering all of the facts and circumstances surrounding the decision.
Most states have adopted the Prudent Man Rule as a way of assessing trustee performance, and have codified this standard in the Prudent Investor Act.
Parties
- Beneficiary
The beneficiary is:
- the person (or persons) who holds the beneficial title to the trust assets.
- While the beneficiary’s name does not appear on the deed to the trust assets, the trustee must manage the assets in the best interests of the beneficiary.
A trust may have more than one type of beneficiary. Since most trusts are designed to terminate at some point in the future, the two most common types of beneficiaries are:
- the income beneficiary and
- the remainder beneficiary.
The income beneficiary is:
- the person or entity who has the current right to income from the trust or the current right to use the trust assets.
The remainder beneficiary is:
- the individual or entity who is entitled to receive the assets that remain in the trust on the date of its termination.
Traditionally,:
- income beneficiaries are entitled to receive all of the income from the trust and the
- remainder beneficiaries are entitled to receive the principal of the trust.
Reasons to Use a Trust
- Management
One of the principal reasons for establishing a trust:
- is to provide for the management of the trust property.
A trust can be used to provide professional management of assets for individuals who are:
- not suited,
- by training or experience,
- to manage assets for themselves.
Reasons to Use a Trust
- Creditor Protection
When asked, most individuals would say they would rather receive:
- an outright transfer of money than a transfer in trust.
If, however, an outright transfer of assets is made,
- the creditors of the recipient (judement creditors or otherwise) will have access to those funds.
If property is placed in a trust with appropriate spendthrift protection instead of being transferred outright,
- the creditors of the beneficiary will not be able to access the funds in the trust to satisfy outstanding creditor claims,
A spendthrift clause, coupled with a provision that allows the trustee to make distributions solely on a discretionary basis, is a very strong and effective asset protection tool.
- The spendthrift clause simply states
- that the beneficiary may not anticipate distributions from the trust, and may not assign, pledge, hypothecate, or otherwise promise to give distributions from the trust to anyone and, if such a promise is made, it is void and may not be enforced against the trust.
If the beneficiary is also the grantor of the trust,
- the trust is referred to as a self-settled trust and,
- as a general rule, spendthrift protection will not apply.
Reasons to Use a Trust
- Split Interests in Property
A trust is often used to take a single asset or property interest and:
- divide it into different interests to satisfy a client’s estate planning and wealth transfer objectives.
Reasons to Use a Trust
- Avoiding Provate (Living Trust)
Perhaps one of the most popular uses of a trust is to avoid probate. In some states, probate is an expensive process, sometimes costing five to six percent of the value of the decedent’s estate.
An alternative to the probate process is the use of a revocable living trust.
All of an individual’s property is transferred to a revocable trust (a trust that the grantor can terminate at anytime) that is managed by the grantor and is for the benefit of the grantor during his lifetime.
Upon the grantor’s death, the trust becomes irrevocable and the property passes to the grantor’s heirs under the terms of the trust.
- Since the probate court does not need to intervene and transfer the property (the property will transfer according to the trust document), probate costs and expenses are saved on the trust property.
It is important to note, however, that a revocable trust does not avoid estate taxes:
- it only avoids probate fees and expenses.
- Because the grantor retained an interest in the trust, the full FMV of the assets are included in his gross estate for estate tax purposes.
Reasons to Use a Trust
- Minimizing Taxes
Trusts can generate tax savings as a result of:
- (1) the transfer of future appreciation to the grantor’s heir
- (2) the minimization of transfer taxes on subsequent generations, and
- (3) the reduction in the size of the grantor’s gross estate.
When a grantor trust is created,
- the grantor is required to pay the income tax liability on the trust income.
- By paying the income tax liability, the grantor of the trust reduces his gross estate by the amount of the income taxes paid.
Trust Duration - The Rule Against Perpetuities
The rule against perpetuities (RAP) states that all interests in trust must vest, if at all, within lives in being plus 21 years.
- From a practical perspective, the effect of the RAP was to place a limit on the amount of time that property could be held in trust.
Due to the uncertainties associated with the length of the perpetuities period under the RAP,
- some states have adopted the uniform statutory rule against perpetuities.
Vest: This means that the beneficiary of the right or property interest is certain to receive a specific amount, either now or in the future.
Taxation of Trusts
All income a trust receives, whether from foreign or dormestic sources, is taxable:
- to the trust
- to the beneficiary.
- or to the grantor of the trust unless specifically exempted by the IRC
To the extent that the income of the trust is distributed to the beneficiaries,
- the beneficiaries who receive the distributions will be subject to income tax on the income.
The trust is allowed to deduct distributions to beneficiaries from its taxable income, with a few modifications.
- Therefore, trusts can eliminate income by making distributions to beneficiaries.
Simple trusts are trusts that
- mandate the distribution of all income
A complex trust, on the other hand,
- is a trust that is permitted to accumulate income, benefit a charity, or distribute principal.
- If the trust accumulates income, it will be taxed on that income at the trust income tax rates.
Whether or not a transfer to a trust will be taxable for gift tax purposes depends on the characteristics of the trust:
- If the trust is a revocable trust, a transfer to the trust will
- not be considered a completed gift for gift tax purposes, and therefore, will not be subject to gift tax.
- If the trust is an irrevocable trust, any transfer to the trust
- will be considered a taxable gift (unless the grantor retains some interest in the trust) subject to gift tax.
For estate tax purposes,
- the assets held by an irrevocable trust funded during a grantor’s lifetime are generally:
- excluded from the gross estate of the grantor.
- When a grantor funds an irrevocable trust for a noncharitable beneficiary,
- gift tax rules apply becauause the transfer is treated as a completed gift at that time.
The assets of an irrevocable trust are included in the grantor’s gross estate if a grantor makes a transfer to an irrevocable trust, but retains:
- (1) the right to receive income from the trust;
- (2) the right to use the trust assets;
- (3) the ability to exercise voting rights on stock transferred to the trust;
- (4) a reversionary interest with a value greater than 5% of the trust;
- (5) the right to terminate, alter, amend, or revoke the trust; or
- (6) the right to control beneficial enjoyment of the trust. To the extent that the grantor paid gift tax on the transfers made to the trust, and
- the value of the trust assets are included in his gross estate, the grantor’s estate will receive a tax credit for the gift taxes actually paid.
In the event a grantor makes a transfer to an irrevocable trust in which
- the grantor retains an interest, and
- the grantor releases his interest in the trust within three years of death,
- the three-year rule (IRC Section 2035) requires the full FMV of the trust to be included in the grantor’s gross estate.
In addition to income, gift, and estate taxes, a trust may be subject to generation-skipping transfer taxes (GSTT).
- Whenever a trust will include a skip person as a beneficiary, it is important to consider the GSTT ramifications,
- and, if appropriate, allocate a portion of the GST exemption to the trust to avoid a current or future GSTT.
Taxation of Trusts
- The Chart is a Summary of the Tax Issues Related to Trusts
Exam Tip: Know The Chart!
Exam Question - Trusts in the Gross Estate
Mary’s husband died two years ago. His will included three testamentary trusts: a trust for the benefit of Mary’s children, but giving Mary a general power of appointment over the trust assets (GPOA Trust); a bypass trust for the benefit of Mary’s children, but giving Mary a power to invade the trust for an ascertainable standard for the remainder of her life (Bypass Trust); and a charitable trust for the benefit of Mary’s alma mater (Charitable Trust). At Mary’s death, which of the trusts assets will be included in her gross estate?
- GPOA Trust.
- Bypass Trust.
- Charitable Trust.
a) 1 only.
b) 1 and 2.
c) 2 and 3
d) None.
Answer: A
Only the GPOA Trust would be included in Mary’s gross estate. Because the withdrawal right of the Bypass trust was limited to an ascertainable standard, its assets are not included in Mary’s gross estate.
Tax Effect for Trusts
- Chart
Know Chart