In December 2010, Congress passed a law that increased the limit of the tax-free wealth that can be transferred by an individual to heirs from $2 million to $5 million. This is an increase of 150% and is significant to any U.S. citizen who has that kind of wealth and is willing to transfer it to his or her children or other beneficiaries. However, this law does not only benefit wealthy individuals. Couples can now take advantage of the new law to plan on their wealth so as to save on taxes. Below are some considerations when making such plans:
Transfer within Spouses
According to the law, an individual can give or transfer wealth to their spouse without paying any taxes. There is no cap to the amount that can be transferred. In essence, this means that a married couple has a tax free limit of $10 million ($5 million for each spouse) to transfer to beneficiaries under the revised Estate Law.
Transfer of Lifetime Limit to Surviving Spouse
Another adjustment that was made to the Estate law was that a surviving spouse could inherit the tax free limit of the departed spouse. In other words, any non utilized limit of the spouse that dies is transferable to the surviving spouse. For example, if a married couple had not utilized any of their tax free limit for estate transfers and one of the spouses dies, the surviving spouse would inherit the unused limit of the deceased spouse and therefore have a limit of $10 million to transfer to children or other heirs. However, if the second spouse died, the only amount of wealth that would be transferred tax free to the heirs would be within the limit of the second spouse, and not both spouses. The law only allows a tax free transfer of the “basic exclusion” upon death, which means the limit of only the person who has died. Any transferred limit is therefore lost.
Using Trust Accounts to Bypass the Law
However, to avoid the surviving spouse losing the tax free limit of the dead spouse once he or she dies, estate lawyers are now setting up family trusts to bypass this law limitation. This is how the trust works: the surviving spouse transfers funds to a family trust to the limit of the tax free balance of the spouse who has passed on. The revenues from the trust are paid to the surviving family members. Once the second spouse dies, wealth within his or her tax free limit can then be transferred either directly to the heirs or to the trust. The wealth that was originally in the trust will not be considered again for the tax free limit as it was transferred to the trust under the limit of the first spouse to die.
Time-line for Estate Law
When setting up trusts and taking advantage of the new limits for the adjusted Estate law, you need to be aware that this law is temporary. The $5 million limit is set to expire in 2012, therefore, reverting back to the former $2 million limit. The rule of transferring the limit of a dead spouse to the surviving spouse will also expire in 2012. However, with the current mood of politicians, it can be projected that that the limit-transfer rule may remain effective post 2012. President Obama has personally vouched to keep this rule beyond its expiration time. Besides this, this rule has become very popular and has gotten a lot of support and experts foresee it becoming permanent in the tax books.










