The end of the year is a busy time for estate and business transition planners. It is a time when clients want to update estate plans and implement transition plans – most notably through the use of annual exclusion gifting plans. When clients are looking to transfer business entities to the next generation or to key employees, Schwabe, Williamson & Wyatt often recommends that they do so over several years. The end of the year is a natural time to make those gifts, as it allows the business owner to maintain the control associated with any interest he or she may be gifting until the end of the year. It is also advantageous for tax filing purposes, as it often avoids the need to do any mid-year accounting changes or returns and, if paired with gifting at the beginning of the next year, can save on valuation costs. At the end of the year, advisers also try to anticipate changes in the law so that we can inform clients on how anticipated law changes might affect their plans.
In past years, Schwabe, Williamson & Wyatt has rushed at the end of the year to implement certain plans because of anticipations that the tax cost of those plans would rise in the next year. This year appears to be the opposite. Given election results and the prospect of a Republican Congress and president, significant tax reform may well occur in 2017. If so, any expected changes would reduce, not increase, estate taxes.
The current federal estate tax imposes a transfer tax on estates in excess of $5.45 million per person. This exemption will rise to $5.49 million in 2017. It includes both lifetime giving and transfers made at death. In its current form, the federal estate tax affects an exceptionally small portion of the population (0.2 percent of the people who died in 2015, according to the Joint Committee on Taxation). Both Mr. Trump and the Republicans have included the repeal of the federal estate tax in their tax proposals.
If the estate tax were to be repealed, it is possible that some business transition plans and estate plans could be simplified to eliminate the tax-driven features, though this possibility is limited for Oregon and Washington residents.
Oregon imposes a state estate tax that affects individuals with estates in excess of $1 million. Washington imposes a state estate tax on individuals dying in 2016 with estates over $2.079 million. These lower thresholds affect a greater percentage of individuals than the federal estate tax. Neither state has a gift tax. It seems unlikely that Oregon or Washington will do away with their estate taxes, even if the federal estate tax is repealed. Given the relatively low estate tax thresholds, Oregon and Washington business owners are still going to need to account for those taxes in their plans.
A question that remains is: What, if anything, might replace the estate tax? Mr. Trump has proposed to treat death as a recognition event for income tax purposes and tax unrealized gains in excess of $10 million at death. There are few details about exactly how such a proposal might work, but it seems clear that the number of individuals affected by this tax will still be very low.
Given the likelihood that any tax reform in 2017 is likely to decrease estate taxes rather than increase them, there may be little need for business owners to rush to accomplish year-end planning in 2016. If the estate tax is repealed, planners may shift their focus toward income tax consequences of various transition strategies.
In the short term, the best advice is to check with an adviser to make sure plans still accomplish goals in the most tax-efficient manner possible under current law. Also, plan to check in again in 2017 as any potential changes become evident. Business owners should also check to make sure any plans for 2016 have been implemented.
The beginning of the year is a great time to do a more comprehensive review of an existing business transition plan and estate plan. Are all key individuals named in the plan still the right people to be involved in the business transition? Have there been changes to family dynamics or desired disposition of the estate that would necessitate changes to a will or trust? Have changes in the business occurred over the last year that should be discussed with advisers? Are an updated durable general power of attorney and an advance directive in place? Are all business and tax records up-to-date? If there is a trust, are all assets properly titled? Are all of the beneficiary designations on life insurance and retirement plans current?
Taking these steps now can simplify things for loved ones and a business in the event of an owner’s death and should not be put off – even if one is holding out hope for law changes that will reduce taxes.
Column first appeared in the Daily Journal of Commerce on December 9, 2016.