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Estate Tax Planning in Texas


Historically speaking, the federal estate tax is an excise tax levied on the transfer of a person's assets after death. In actuality, it is neither a death tax nor an inheritance tax, but more accurately a transfer tax. There are three distinct aspects to federal estate taxes that comprise what is called the Unified Transfer Tax: Estate Taxes, Gift Taxes, and Generation-Skipping Transfer Taxes. Legal planning to avoid or minimize federal estate taxes is both a prudent and an important aspect of comprehensive estate planning.

The most recent iteration of the federal estate tax was signed into law on January 2, 2013, as part of the American Taxpayer Relief Act of 2012 (ATRA 2012). There are a few things you ought to know about this law, as regarding your estate planning. Specifically, you should know the "numbers" governing transfers subject to estate, gift and generation-skipping transfer taxation.

Federal Estate Tax Exemption

The $5 million exemption signed into law on December 17, 2010, under the Tax Relief, Unemployment Insurance Authorization, and Job Creation Act of 2010 (TRA 2010), is now permanent under ATRA 2012, as indexed for inflation. Accordingly, the individual federal estate tax exemption for 2013 was $5.25 million, 2014 was $5.34 million and for 2015 is $5.43 million.  This means that a married couple can leave close to $11 million at death and pay no estate taxes.  However, just like exemptions captured for income tax purposes, the estate tax exemption must be captured.  Failure to follow at least one of a few permissible methods of capturing the federal estate tax exemption may result in loosing that exemption.  This is of special concern when a surviving spouse fails to capture the over $5 million worth of federal estate tax exemption for the deceased spouse.

Annual Gift Tax Exclusion and Lifetime Gift Tax Exemption

The ATRA 2012 continues the concept of a unified exemption that ties together the gift tax and the estate tax. This means that, to the extent you utilize your lifetime gift tax exemption while living, your federal estate tax exemption at death will be reduced accordingly. Your unified lifetime gift and estate tax exemption in 2015 is $5.43 million, as indexed for inflation up from $5.34 million in 2014. Likewise, the top tax rate is 40%.

The annual gift exclusion is currently $14,000 for 2015, just as it was for 2013 and 2014. Married couples can combine their annual gift exclusion amounts to make tax-exempt gifts totaling $28,000 to as many individuals as they choose each year, whether both spouses contribute equally, or if the entire gift comes from one spouse. In the latter instance, the couple must file an IRS Form 709 Gift Tax return and elect "gift-splitting" for the tax year in which such gift was made.

Gifts made within your annual gift exclusion amount do not count against your unified lifetime gift and estate tax exemption.  For example, a married couple may gift $28,000 to each of their three children in a given year, for a grand total of $84,000, and not incur any gift tax liability.  A married couple who gifts above $28,000 to any one child must either pay gift tax or claim a portion of their unified lifetime gift and estate tax exemption.

Generation-Skipping Transfer Tax Exemption

The amount that can escape federal estate taxation between generations, otherwise known as the Generation-Skipping Transfer Tax Exemption (GSTT) is unified with the federal estate tax exemption and the lifetime gift tax exemption at $5.43 million, as indexed for inflation up from $5.34 in 2014. As with estate and gift taxes, the top tax rate is 40%.

So, what is this GSTT? Basically, it is a transfer tax on property passing from one generation to another generation that is two or more generational levels below the transferring generation. For instance, a transfer from a grandparent to a grandchild or from an individual to another unrelated individual who is more than 37.5 years younger than the transferor.

Properly done, this can transfer significant wealth between generations.

*"Portability"

The ATRA 2012, makes "permanent" a new concept in estate planning for married couples, ostensibly rendering traditional estate tax planning unnecessary. This concept, called "portability," means that a surviving spouse can essentially inherit the estate tax exemption of the deceased spouse without use of "A-B Trust" planning. As with most tax laws, however, the devil is in the details. For example, unless the surviving spouse files a timely (within nine months of death) Form 709 Estate Tax Return and complies with other requirements, the portability may be unavailable.

In addition, married couples will not be able to use the GSTT exemptions of both spouses if they elect to use "portability" as the means to secure their respective estate tax exemptions. Furthermore, reliance on "portability" in the context of blended families may result in unintentional disinheritances and other unpleasant consequences.

If you are concerned about how your current estate and gift planning may function in light of ATRA 2012, and thereafter, then we encourage you to schedule a consultation.

Texas Estate Taxes

Texas's estate tax system is commonly referred to as a "pick up" tax. This is because Texas picks up all or a portion of the credit for state death taxes allowed on the federal estate tax return (federal form 706 or 706NA). Since there is no longer a federal credit for state estate taxes on the federal estate tax return, there is no longer basis for the Texas estate tax. Texas has neither an estate tax – a tax paid by the estate, nor an inheritance tax – a tax paid by a recipient of a gift from an estate.

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Vacek & Thain, PLLC serves Texas families with their estate planning, estate tax planning, charitable planning, revocable living trusts, irrevocable trusts, Heritage trusts, wills, power of attorney, family limited partnerships, advanced asset protection planning, declaration of guardian for minor children, healthcare documents, will based estate planning and the hazards of will planning, special needs estate planning, estate administration and trust administration. Contact Vacek & Thain, PLLC if you or your loved ones reside in the Houston, Texas area, including: Katy, Cinco Ranch, Mission Bend, Pecan Grove, Richmond, Rosenberg, Greatwood, Sugar Land, Meadows Place, Bellaire, Fresno, Pearland, South Houston, Spring Valley Village, Pasadena, Clear Lake, Friendswood, and more!

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