Should your estate plan try to avoid income taxes rather than avoid estate taxes?

With the federal gift and estate tax exemption nearing $13 million, a married couple can have close to $26 million in their estates before any federal estate tax would be due.  That leaves only a small percentage of people in the US who actually need estate plans focused on avoiding estate taxes.  Those who are comfortably below the threshold can instead focus their plans on reducing income taxes.

Estates get a step up in basis at death, so that assets do not pay both estate and income taxes.  For example, the house owned by a couple often has a low basis, so taxes will be due on sale.  When they die, they get a step up in basis, eliminating that gain and the corresponding income tax that would be due at death. 

To illustrate, here’s an example:  a married couple own a house worth $2 million for which they paid $500,000, they have $2 million in retirement accounts and $5 million in broker accounts.  Their combined estate of $9 million is well below the federal exemption of nearly $13 million per person, so no federal estate taxes will be due.  They have $1.5 million of gain if they sell the house, of which $1 million would be taxed after applying the $500,000 exclusion on the sale of a principal residence. 

If they have the standard estate plan, they will have revocable trusts that use the state and federal estate tax credits at both the first and second deaths.  If proper elections are made, no estate taxes will be due at the first death and no federal estate taxes at the second death.  They will also get the step up in basis. 

But what if one spouse dies many years later?  The half with the step up at the earlier death could now be subject to taxes on gain when the heirs direct the estate or trusts to sell.  If the house is then worth $4 million, the half in the trust of the first to die has new gain of $1 million on which income taxes will be due. 

If instead of having half the house counted at the first death, what if it is treated as passing to the survivor?  Then there is a full step up at the second death, with no gain.  And they have not traded capital gains for estate taxes.  While assets are counted in the second estate, rather than using the exemption at the first death, the first estate can make proper use of the deceased spouse’s unused exemption or “DSUE.”  Since 2012, federal law allows any portion of the gift and estate tax credit not used in the first estate tax filing to be carried to the second spouse’s death or “ported,” if the proper election is made.  This “portability election” for the DSUE is made on the estate tax return. 

But what happens when the federal credit drops back down in 2026 to the old amount as scheduled, which, after adjusting for inflation, is expected to be around $7 million?  The estates for the couple in our example still avoid federal estate taxes, using the DSUE of up to $7 million from the first death and the $7 million credit at the second death.  

Planning for state estate taxes may be necessary (for Massachusetts residents, the trusts can be used to shelter $1 million, the maximum credit).  And you may want to use trusts to control who gets access to the estates and when.  Also, you may need to plan for the generation skipping transfer tax or “GST” tax, which requires use of trusts and proper elections at death. 

If your net worth is enough to need estate planning but you do not expect to owe federal estate taxes, then your plan can address avoiding capital gains and use the DSUE to ensure that estate taxes are still avoided.  

  • Note that Massachusetts increased the estate the exemption from $1 million to $2 million as of January 1, 2023.  This may affect your planning. 

Let me know if you would like to discuss this.

Steven

Estate planning checkup: why you don’t, why you should

Why you don’t:

We have written previously stressing the need to have an estate plan, so you do not leave a mess, and why you may need life insurance to protect others.  Few people will disagree with the need to have a current plan and to provide for survivors, but not everyone acts.  

So, why is it that people fail to take action?  Rick Kahler wrote recently about Overcoming Client Procrastination with Financial Planning.  In his post, he lists factors that cause people to put off action that agree is important to address: 

  1. Avoidance.  Feelings of self-doubt, fear of pain or anxiety around the task, depression, fear of asking for help, lack of trust.
  2. Perfectionism.  Fear of failure, fear of being criticized (both externally by others and – often more powerfully – internally by parts of yourself).
  3. Ambiguity.  Lack of clarity about the task, feeling overwhelmed, difficulty prioritizing in the absence of a crises, being focused on immediate tasks.
  4. Narcissism.  Over-confidence in getting it done at the last minute. Needing chaos or pressure to provide adrenaline, the ability to focus to the exclusion of everything else, and a feeling of being fully alive.
  5. Physical Issues.  Fatigue, illness.
  6. Lack of knowledge.  Not knowing what you don’t know, unsure how to get needed help and information.
  7. Financial.  Not having the funds to take the necessary action.   

Do any of these apply to you?  If so, we can help so please contact us. 

Why you should:

One reason to review your estate plan is that the Biden administration may seek changes to the estate and income tax laws; you want to make sure your documents have the flexibility to address these changes.  The current federal gift and estate tax credit is close to $12 million.  However, it is scheduled to drop to between $5.5 and $6 million in 2025 and the administration may push for a lower credit to be imposed sooner.  Also, the administration may try to eliminate the step-up in basis at death.  We will continue to monitor any proposed law changes and post updates. 

There are other tax law changes to address, such as the elimination of the “stretch IRA.”  You may need to revise your beneficiaries.  Also, you will want your executor or personal representative to elect portability of your federal credit to minimize taxes and may want your documents to address the generation skipping transfer tax credit.

Another reason to act is to provide for your digital assets, something old documents may not address.  For example, you can give your attorney-in-fact under your durable power of attorney access to your digital assets and you can assign your digital assets to your revocable trust so your trustee has access.  Digital assets include e-mail and text messages, photographs, videos and other files on your computer, on-line accounts such as your investments and social media, or even intellectual property and patent rights.  You may also have collectibles that need to be addressed,

Another reason to act is to ensure that someone knows how to access all your passwords if something happens to you.  Create your own “Rosetta Stone,” a document telling them how to access your digital life, with IDs and passwords, and then make sure an immediate family member or close friend knows where to find it.  This way, they can locate all your important documents, find assets and insurance, and handle your social media if something happens.  You may also want to provide a memorandum to your personal representatives and trustees detailing your wishes, including thoughts on when to distribute to children, protecting from creditors, and even burial or cremation.

If you to take the time now to review and update your plan, be sure:

  • that you have documents that are in order,
  • that the documents are correctly executed,
  • that you provided adequate resources for survivors, including life insurance, and
  • that your beneficiary designations and asset ownership all coordinate with your documents.

When you do, you will have improved matters for you and your family! 

Contact our office if you have any questions or comments. And be well!

Will you leave a mess or a legacy? Don’t die without a plan

“where did they leave it?”

Estate planning is not fun.  You have to face what the world will be like after you leave it.  You want to leave a legacy so your survivors are happy.  However, less than one in five of you have taken the steps needed. 

If you completely ignore creating a post-death plan, then you will leave a chaos and confusion for others to sort out at a time when they will be grieving from your loss.  They will have to find where you put everything and sort out where you wanted everything to go. 

If people depend on you financially, not providing enough on which they can survive will mean major lifestyle changes for them.  Not something you want. 

You want survivors to focus on cherished memories, not on probate courts.  Take action! 

Now, what do you do?

First, leave enough so survivors can survive

Make sure you have provided for those who depend on you.  Usually, that means purchasing some form of life insurance.  You want to replace your earning power from now until the time that they are independent, either when a spouse or partner retires or when your children become gainfully employed. 

If you have been saving for retirement, those accounts may be enough so you don’t need to purchase life insurance.  Reviewing your potential estate with an advisor is wise to make sure survivors have enough. 

Second, sign the documents

Execute documents that ensure that your estate goes to the people who you want to benefit.  This usually means signing beneficiary designations for retirement plan accounts and executing a will.  You may even need a trust for young survivors.  We wrote this post detailing the steps a few years back.  If that’s too technical, ask me questions. 

You may want to consult an advisor to get all the proper documents in place.  Here is a good checklist to review.

Third, have the conversations

Talk to your spouse, to your adult children and to the people you name in your documents.  Make sure they understand your wishes.  Do you want to be buried or do you want to be cremated?  Do you want donations made to charities? 

What if you have a catastrophe the doesn’t kill you, but leaves you hooked up to machines forever?  Have a conversation so your loved ones know your wishes.  And, make sure you sign a health care proxy or medical directive, living will and even a “do not resuscitate” or DNR order. 

Fourth, leave a trail

Make sure the key people know how to find everything.  One way is to write a memorandum listing your passwords, where to find the safe deposit box key, and where you stored the life insurance policies.  Give copes to key people, such as the personal representative named in you will or the trustee of your trust. 

Finally, leave a legacy

When you take care of all you can, in advance, your survivors don’t have to suppress feelings while they clean up a mess:

“WE WERE WORRIED ABOUT MY MOM after my dad died, but he had everything in order. It allowed us to focus on our grief instead of being bogged down in financial paperwork and family bickering.” That’s one of the candid responses Merrill Lynch and Age Wave received when they interviewed more than 3,000 Americans 55 and older for a comprehensive look at attitudes and practices surrounding legacy planning.  From How do you want to be remembered…

planning and taking action

You will need to review and update your plan over time.  But, just knowing you took all these steps should improve matters for you and your family now!  Contact our office if you have questions so you can “don’t worry, be happy!”

Cancer, I try not to talk about it

I had cancer. If you have had cancer, or know anyone who has, you know it changes your life – forever.

If you are lucky, and you live, each day is special in a new way.

When I first wrote this, I had just attended a wake for a friend who was 51 and in great health, or so we thought. He played basketball, rode a mountain bike, trained in karate … then died from heart attack.

It’s over a year later, so why am I talking about this now? I don’t want anyone to starve themselves today for a future they may never see.

I am not saying spend everything living today. But I am saying find a balance!

Yes, “balance,” that mindfulness term that applies to financial planning. Enjoy what you can today without making your future a mess, and make your future good enough so you can enjoy today.

Got it? I hope so.

P.S – please see my Pan-Mass Challenge profile for more on my response to having had cancer and losing a dear friend. (The answer is obvious: I ride to raise money to save others!)
Great photo of some young PMC riders!

Roth or not to Roth? Deciding requires predicting your future tax rate

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More employers now provide the option of a Roth 401(k) as well as a traditional 401(k), so you may ask:

Which should contribute to a Roth 401(k) or a traditional 401(k)?

The answer is not so simple and it depends on your income tax rate now and at retirement. Before offering background and explanation, we start with this Quick Summary

If you have a high tax rate now, and expect a low tax rate later, pick the traditional 401(k)

The traditional plan is better because get the current tax deduction, reducing taxes now at the higher tax rate. This may be true for people in middle or later years of employment.

Note: this is only financially better if you invest the amount of taxes saved.

If you have a low tax rate now, and expect a high tax rate later, pick the Roth 401(k).

The Roth plan is better because you avoid higher taxes later. This may be true for most people starting work now.

If expect to have the same tax rate later as you have now, pick the Roth 401(k)

The Roth plan has other benefits described below.

Background – How the Plans Work:

Tax deferred growth

Earnings on both the traditional 401(k) and the Roth 401(k) are not taxed. Not paying taxes on investments in your retirement account means more grows and compounds tax-free – that is why contributing to a retirement plan is so important.

Contributions “pre-tax” vs. after tax

Contributions to a traditional 401(k) are made “pre-tax,” meaning that the amount contributed is excluded from your taxable income for the year.

Contributions to a Roth 401(k) are made after tax – they are not excluded from taxable income.

Taxing withdrawals vs. no tax

Withdrawals from a traditional 401(k) are taxed in the year of withdrawal.

Withdrawals from the Roth plans are not taxed. That is, the after-tax contributions are not taxed a second time and neither is the growth on those contributions.

Other rules – early withdrawal and require minimum distribution

There are penalties for withdrawal before reaching age 59½, unless certain exceptions are met, such as disability or first-time home buyer.

You must begin withdrawing when you reach age 73 under the revised IRS Required Minimum Distribution or “RMD” rules. For more on RMD rules, see IRS Retirement Topics – RMDs

Hedging your bets:

If you are not sure of your tax rates, or if you just want more options because you cannot predict, then you can opt to combine plans. For example, you can contribute to your traditional 401(k) up to the employer match and then put the rest in a Roth IRA, if the contribution limits allow.

Conversions:

When you change jobs, you can convert a 401(k) to a Roth IRA, but doing so is a taxable event. If you expect your tax rate to be higher in the future, this is a good move. However, you will want to pay taxes due from other sources. If you have to take funds from the IRA to pay the taxes, you reduce the amount going into the Roth IRA which dramatically reduces the future benefit.

If you convert after-tax contributions made to a traditional 401(k) or non-deductible IRA, you have less on which taxes are due because the after-tax portion is not taxed in converting to a Roth IRA.

Other considerations:

While a Roth 401(k) is subject to RMD, a Roth IRA is not. If you can re-characterize the Roth 401(k) to a Roth IRA, you avoid the RMD. This may mean that you pass more on to your heirs. Also, you may gain investment flexibility compared to a company plan.

If you use a Roth plan, then your taxable income at retirement will be less than if you were withdrawing from a traditional plan where withdrawals are taxed. This could lessen tax due on social security benefits.

On the other hand, if you expect to use funds in your retirement plan to donate to a charity, you are better off getting the tax savings for yourself now. The charity is not subject to much if any income tax.

Also, if you expect your heirs to receive your retirement plan assets and know that those heirs will be in a lower income tax bracket, you should use a traditional plan now to get the tax benefit for yourself. How can you possibly determine that heirs will get more of your retirement than you and also be in a lower tax bracket? I cannot imagine – well, maybe I can, but none of the ideas sound good. Anyway, it seemed like a good idea to mention (they teach you to think this way in law school).