Knowledge Center

Thursday, January 24, 2013

Estate Planning After the Cliff: What You Need to Know

Client Bulletin sent by the Trusts and Estates Group on January 24, 2013

On January 2, 2013, President Obama signed the American Taxpayer Relief Act of 2012 (the "2012 Tax Act"), which retroactively extended most of the tax breaks for individuals that expired on January 1, 2013. Most significantly, the 2012 Tax Act eliminated the so-called "sunset provisions" of the Economic Growth and Tax Relief Reconciliation Act of 2001 and the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, thereby allowing individuals and their advisors to engage in estate planning without the uncertainty caused by prior legislation.

Increase in Transfer Tax Exemptions

The good news for taxpayers is that the 2012 Tax Act permanently increased the exemptions for federal estate, gift and generation-skipping tax transfer ("GST") tax. Those exemptions, which will be automatically indexed for inflation in future years, are currently $5,250,000 per person. In addition, the 2012 Tax Act permanently retained the concept of "portability," which essentially allows a surviving spouse to use the deceased spouse's unused estate (but not GST) exemption. The bad news is that the top tax rate on gifts and bequests increased from 35% to 40%. As a result, taxpayers whose net worth exceeds the exemption amount may have to pay more in tax under the new law.

Continuation of State Death Tax Deduction

The 2012 Tax Act also permanently converted the state estate tax credit to a deduction. As a result, residents of states such as Illinois, which have a separate estate tax law, may have a greater estate tax burden than residents of other states. In addition, because many states, including Illinois, have a lower estate tax threshold than the federal estate tax exemption, it is a good idea to review your estate plan to be sure that it addresses this differential. Many estate plans, particularly those done prior to 2008, may not contemplate this relatively recent adjustment in state laws.

Increase in Annual Exclusion

Courtesy of the 2012 Tax Act, donors of lifetime gifts may continue to apply the annual gift tax exclusion before having to use part of their lifetime exemption. For 2013, that inflation-adjusted annual exclusion amount is $14,000 per donee. Married couples may continue to "split" their gifts and may make combined gifts of $28,000 to each donee.


On the income tax side, the 2012 Tax Act eliminated the perennial adjustments to the alternative minimum tax (AMT), by indexing the exemption amount to inflation. The Act retroactively increased the exemption amount from $33,750 to $50,600 for single filers and from $45,000 to $78,750 for married taxpayers filing jointly. However, AMT will still continue to affect a great number of high income taxpayers.

Discharge of Indebtedness Exclusion

The 2012 Act provides a one year extension of the exclusion of up to $1,000,000 of discharge of indebtedness income relating to a taxpayer's principal residence ($2,000,000 for married taxpayers). Debt forgiven in connection with a foreclosure, as well as debt reduced through mortgage restructuring, qualifies for the relief. However, the exclusion only applies if the discharge is directly related to a decline in the home's value or the taxpayer's financial condition.

Qualified Charitable Contributions from IRAs

The 2012 Tax Act temporarily extends the ability of individuals aged 70½ or older to make a direct transfer from an IRA to a charity of up to $100,000 per year. The Act also allows charitable distributions from IRAs that are made prior to February 1, 2013 to be deemed to have been made in 2012. In addition, the Act provides taxpayers with a temporary window of opportunity to treat any portion of a distribution from an IRA in December 2012 as a qualified charitable distribution it is donated to a charity (in cash) before February 1, 2013.

Income Tax Rate Hike

Tax rates for the vast majority of taxpayers were unchanged. However, a new top income tax rate of 39.6% will be imposed on taxable income over $400,000 for single taxpayers and $450,000 for married taxpayers filing jointly. In addition, a new 20% tax rate applies to capital gains and dividends for individuals in the highest income tax bracket. Taxpayers who are in the 25-35% income tax rates remain subject to a 15% capital gains tax rate, and those in the 10-15% tax rate do not pay any capital gains tax.

FICA Tax Hikes

Unfortunately, the 2% payroll tax holiday, which was in effect for 2011 and 2012 has not been extended. As a result, the tax rate on the employee's portion of Social Security and self-employment taxes has reverted to 6.2%. The Act also imposes an additional Medicare Tax of 0.9% on taxable wages in excess of $250,000 in the case of a married taxpayers filing jointly and $200,000 for single taxpayers.

Additional Medicare Tax on Investment Income

Also coming into effect in 2013 is the unearned income Medicare contribution tax, which was enacted as part of the Affordable Care Act of 2010. This tax is an additional 3.8% of the lesser of a taxpayer's: (a) net investment income for the year; or (b) modified adjusted gross income over a certain threshold amount (which is currently $200,000 for single taxpayers and $250,000 for married taxpayers filing jointly).

For Your Consideration

While the 2012 Tax Act did not address all of the financial issues relating to the so-called fiscal cliff, many of the tax provisions that were scheduled to revert back to pre-2001 levels as of January 1, 2013 were extended indefinitely, including the transfer tax laws. Tax law changes are a good impetus to review your planning needs. As a general rule, we recommend that you contact us if: (1) your estate plan is more than 5 years old; (2) you own substantial life insurance in your own name; or (3) you have had a major change in your financial position or family situation. Your HMB attorneys are happy to answer any questions you have about the 2012 Tax Act or your estate and tax planning needs.

Click here to read more about the Trusts and Estates Group or to view a list of HMB Trusts and Estates attorneys.

NOTICE: Emailing an attorney shall not and does not create an attorney-client relationship between the attorney and users of this web site or any other party whatsoever. An attorney-client relationship is ONLY established through a written engagement, and only where doing so would comply with all applicable laws and ethical rules.

CONFIDENTIAL INFORMATION: Transmission of information on-line, over email, or through any electronic means can be unstable, unreliable and insecure. You should not send information or facts via e-mail relating to your legal problem or question. If you do not have an existing attorney-client relationship, your e-mail may not be privileged or confidential.

By clicking 'OK' below, you are agreeing to the terms of this web site.

Please fill out the form below and we'll send an email out about this page to a recipient of your choice.

Copy: Check here if you would like a copy of the email.