Tuesday, December 15, 2009

The Never Ending Uncertainty of the Federal Estate Tax

Oh, the federal estate tax issue. The House recently voted to extend the current tax rate.

What does this mean for you? First, a little background. Gifts and estates are taxed by the federal government, and by many states. However, there is generally an exemption allowing estates under a certain amount to be transferred tax free. The exemption from the federal estate tax was, for many years, $1 million dollars. That meant that your estate did not have to pay tax unless your estate was over the $1 million mark. Eventually, this limit didn't only impose tax on the very wealthy, but also on small family farms and businesses, as the entire estate, for tax purposes, includes things like real property, business interests, some types of trusts and life insurance. Congress, taking the position that the estate tax was crippling small farms and businesses, increased the exemption, to $1.5 million in 2004 and 2005, $2.5 million in 2006 - 2008 and $3.5 million in 2009. That legislation had a sunset provision which basically repealed all federal estate tax for 2010 and returned the exemption to the $1 million mark in 2011. This system created a level of uncertainty because it was nearly impossible to predict what exemption would be in place at death. Additionally, the 2010 repeal with the 2011 exemption leads to an absurd result, which the darker humored among estate planners called, the "unplug grandma" rule.

The House bill would keep the 2009 exemption in place for the foreseeable future. However, the uncertainty under the prior system becomes even more unpredictable because the Senate has yet to move on the bill. It seems extremely unlikely that the Senate will touch this issue before 2010, in light of their current fight over health care. What may likely happen, is that the Senate will take a look at the issue sometime in 2010. If they follow the House's lead, and the President is on board, the 2009 exemption may be extended and applied retroactively for all of 2010.

So what should you and your planner be doing? We are in uncertain times when it comes to the estate tax and uncertainty is no friend to a planner. One way to approach the issue is plan for the $1 million exemption which is the likely worst case. Here in Minnesota, that is a common approach, as our state estate tax exemption has remained at the $1 million mark. Also, if this affects you, keep informed. If legislation is enacted that brings some certainty, it would be time to call up your planner and evaluate whether your plan should be changed accordingly.

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